THE  /  0 

TREATY-MAKING  POWER 


OP  THE 


UNITED    STATES 


BY 

CHARLES  HENRY  ^TLER 

OF   THE    NEW   YORK    BAB 


VOL.  I. 

Part  I.  The  United  States  is  a  Nation. 
Part  II.  Historical  Review  of  the  Treaty-Making  Power  of  the 

United  States. 


THE  BANKS  LAW  PUBLISHING  CO. 

21  MUKRAY  STREET,  NEW  YORK 

1902 


Copyright,  1902, 
By  The  Banks  Law  Publishing  Co. 


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These  volumes  are  dedicated 

with  affection  and  respect 

to  the  memory  of  my  grandfather 

BENJAMIN  FRANKLIN  BUTLER 

whom  the  Historian  Bancroft  described 

as  "ever  the  upright  statesman." 

He  was  born  at  Kinderhook  Landing  (Stuyvesant) 

New  York,  December  14,  1795,  and 

died  at  Paris,  France,  November  8,  1858. 

He  was  appointed  in  1824  a  Commissioner  to  Revise  the 

Statute  Laws  of  the  State  of  New  York. 

He  was  Attorney-General  of  the  United  States  from  1833 

to  1838  during  the  administrations  of  Andkew 

Jacksox  and  Martin  Van  Buren,  and  for  a  part  of 

that  period  he  was  also  Secretary  of  War. 
On  more  than  one  occasion,  while  he  was  Attorney- 
General,  he  sustained 
THE  treaty-making  POWER  OF  THE  UNITED  STATES 
before  the 
SUPREME  COURT 
while  John  Marshall,  was  the  Chief  Justice 
and  Joseph  Story  an  Associate  Justice 
of  that  august  tiibunal. 

"  There  were  giants  in  the  earth  in  those  days.'''' 


PREFACE 


AND   DEDICATORY   KOTB. 


A  little  over  a  year  ago  the  original  inanuscript  of  this 
work,  upon  which  nearly  three  years  had  then  been  spent, 
was  handed  to  the  publisher  with  the  hope  and  expectation 
that  the  single  volume  then  in  contemplation  would  be 
completed  and  offered  to  the  reading  public  within  the  fol- 
lowing sixty  days.  Such  hope  and  expectation,  however, 
failed  to  be  realized  as  the  necessity  for  revision  of,  and  ad- 
ditions to,  the  original  manuscript  and  the  pages  as  they  re- 
turned from  the  printer,  resulted  in  expanding  the  work  to 
its  present  proportions,  and  in  dela3'ing  its  publication  until 
the  present  time.  The  increased  bulk  of  these  volumes  it  is 
hoped,  is,  to  some  extent,  atoned  for  by  the  thoroughness  with 
which  they  have  been  indexed,  for  that  part  of  the  work  can 
be  referred  to  without  egotism  as  it  has  been  done  almost, 
if  not  entirely,  by  Mr.  E.  E,  Treffrey  whose  ability  as  an 
analyzer  and  indexer  of  works  of  this  nature  has  earned  for 
him  a  well  deserved  reputation. 

The  selection  of  the  subject-matter  of  these  volumes  was 
the  natural  outcome  of  my  investigations  into  the  nature 
and  extent  of  the  treaty-making  power  of  the  United  States 
during  my  connection  in  1898  with  the  Anglo-American 
Joint  High  Commission,  particularly  in  regard  to  the  extent 
of  the  power  of  the  United  States  to  enforce,  by  appropriate 
Federal  legislation,  treaty  stipulations  in  regard  to  matters 
which,  in  the  absence  of  treaty  relations,  would  be  wholly 


11  PREFACE. 

within  State  jurisdiction.  Tlie  result  of  such  investigations 
appears  in  chapter  XV  of  volume  II,  but  after  the  conclu- 
sions there  stated  had  been  reached  and  even  after  my  con- 
nection with  the  Commission  had  ceased,  the  subject  con- 
tinued to  interest  and  fascinate  me,  and  so  held  my  attention 
that  I  determined  to  make  it  the  basis  of  a  work  in  which 
the  treaty-making  powder  of  the  United  States  in  all  of  its 
varied  phases  and  aspects  should  be  the  principal  subject  in- 
stead of  being,  as  until  the  present  time  it  generally  has 
been,  the  subject  merely  of  a  subdivision,  or  of  a  chapter,  in 
■works  on  constitutional  and  international  law.  It  has  been 
impossible,  however,  to  cover  the  subject  as  thoroughly 
as  was  originally  intended,  because,  as  the  work  has  pro- 
gressed, new  branches  and  subdivisions  have  constantly  ap- 
peared, and  doubtless  if  they  had  not  been  brought  to  an 
abrupt  close  these  volumes  might  have  been  indefinitely  in- 
creased in  size,  and  delaj'^ed  in  publication. 

The  expansion  of  the  work  has  to  a  great  extent  been  caused 
by  the  addition  to  volume  I  of  the  Insular  Cases  Appendix 
w' hich  contains  an  abstract  of  all  of  the  decisions  and  opinions 
of  the  Supreme  Court  of  the  United  States  in  the  cases  decided 
in  May  and  December,  1901,  which  involved  the  status,  so  far 
as  the  revenue  provisions  of  the  Constitution  are  concerned, 
of  our  newly  acquired  possessions ;  and  also  of  the  Treaties 
Appendix  to  volume  II  which  contains  a  list  of  treaties  and 
agreements,  and  proclamations  affecting  our  relations,  with 
foreign  countries,  arranged  alphabetically  according  to  coun- 
tries, and  which,  owang  to  the  great  pains  and  labor  of 
Captain  Osgood  Smith  of  the  New  York  Bar  and  now  of 
Havana,  who  assisted  me  in  its  preparation,  is  probably  more 
complete  than  any  other  published  list  of  treaties  and  procla- 
mations. 

The  delay  in  publication  has  largely  been  on  account  of 
the  rapidity  with  which  "  history-making  "  has  progressed 


PREFACE.  m 

during  the  preparation  of  ttiese  volumes.  The  deaths  of 
Queen  Victoria  and  President  McKinley  were  undoubtedly 
the  two  most  important  historical  events  of  1901,  but  those 
having  the  most  important  bearing  upon  the  treaty-making 
power  were  the  decisions  on  May  27th  and  December  2d,  of 
the  Supreme  Court  in  the  Insular  Cases  which  have  already 
been  referred  to,  and  the  negotiation  and  ratification  of  the 
Hay-Pauncefote  treaty  by  which  the  Clayton-Bulwer  treaty 
of  1850  was  superseded  and  abrogated.  As  these,  and  other, 
events  happened  after  much  of  the  matter  was  actually  "  in 
plate  "  they  necessitated  changes  and  delay.  Even  now,  as 
this  book  goes  to  press,  and  it  is  too  late  to  make  more  than 
a  brief  mention  thereof,  (p.  457,  vol.  I)  the  irrepressible  con- 
flict between  the  Senate  and  the  House  of  Eepresentatives  as 
to  the  necessity  of  legislation  to  make  treaty  stipulations  not 
only  obligatoiy  as  contracts,  but  also  effectual  as  laws,  has 
been  reopened ;  and  the  question  which,  as  Senator  Cullom 
declared,  has  been  debated  for  over  a  century  in  both  Houses 
of  Congress  without  reaching  any  decision,  has  once  more 
assumed  serious  and  practical  importance.  It  has,  indeed, 
been  a  temptation  to  delay  the  publication  until  some  defi- 
nite conclusion  shall  have  been  reached  in  the  pending  con- 
test, but  it  has  been  resisted,  and  should  any  additional  treaty 
history  be  made,  or  treaty  law  be  newly  expounded,  reference 
thereto  will  have  to  await  the  publication  of  further  editions, 
if  any  shall  ever  be  warranted  by  the  reception  accorded 
to  this. 

That  which  has  most  impressed  itself  upon  me  as  I  have 
prepared  these  pages  is  the  magnitude  of  any  element  of  con- 
stitutional law ;  indeed  the  grandeur  of  the  Constitution  it- 
self, not  only  as  the  subject  of  study  but  as  the  "  great  charter 
of  our  liberties "  as  it  was  fitly  called  by  Justice  Story  in 
his  opinion  in  the  great  case  of  Martin  vs.  Hunter  must 
steadily  grow  upon  an}'-  one  who  carefully  studies  it ;  the 


IV  PKEFACE. 

Avords  then  uttered  by  that  great  jurist  have  a  lasting  signif- 
icance, and  they  will  be  as  applicable  in  the  future  as  they 
are  to-day  and  were  in  1816  when  he  declared  :  "  The  instru- 
ment was  not  intended  to  provide  merely  for  the  exigencies 
of  a  few  years,  but  was  to  endure  through  a  long  lapse  of 
ages,  the  events  of  which  were  locked  up  in  the  inscrutable 
purposes  of  Providence  "  ;  and  who  can  fail  to  be  hnpressed 
with  the  wisdom  of  its  fraraers  who  "  foreseeing  that  it 
would  be  a  perilous  and  difficult,  if  not  an  impracticable, 
task  to  provide  for  minute  specification  of  its  powers,  ex- 
pressed them  in  general  terms,  leaving  to  the  legislature  from 
time  to  time,  to  adopt  its  own  means  to  effectuate  legitimate 
objects,  and  mould  and  model  the  exercise  of  its  powers  as 
its  wisdom  and  the  public  interests  should  demand."  Surely 
the  temptations  which  those  men  in  Philadelphia  resisted  to 
insert  specifications  and  details  applicable  to  then  existing 
circumstances  must  have  been  strong  indeed,  and  all  praise 
must  be  given  to  them,  in  that  they  were  able  to  rise  above 
local  and  temporary  exigencies  and  frame  an  instrument 
which  is  to-day  as  true  a  chart  and  compass  for  a  great 
world  power  as  it  was  then  for  an  infant  nation  struggling 
for  existence. 

In  presenting  this  my  first  work  of  any  magnitude,  I  ac- 
knowledge that  it  must  contain  many  errors  and  that  much 
has  been  omitted  which  should  have  found  a  place  therein, 
and  indulgence  is  asked  for  all  these  faults.  I  also  know  that 
some  of  the  opinions  which  have  been  expressed  differ  from 
those  held  by  men  whom  no  one  respects  more  than  I  do. 
Questions  involving  the  construction  of  our  Constitution  al- 
ways have  been,  and  always  will  be,  debatable ;  it  is  well  for 
our  country  that  it  is  so,  as  it  is  only  by  the  earnest  presenta- 
tion of  both  sides  of  every  question  that  truth  is  finally  reached 
and  safe  rnethods  adopted.  In  expressing  my  own  opin- 
ions, however,  an  effort  has  been  made  to  place  the  reader  in 


PREFACE.  V 

possession  of  the  views  of  others  and  to  furnish  such  refer- 
ences as  will  enable  them  to  form  their  own  conclusions. 

These  volumes  have  been  dedicated  to  ray  grandfather, 
but,  in  order  that  the  name  of  my  father,  William  Allen 
Butler,  may  also  in  some  manner  be  linked  with  them,  they 
will  make  their  lirst  appearance  on  that  anniversary  of  his 
birth  (February  20, 1825),  on  which  he  completes  the  seventy- 
seventh  year  of  his  life.  For  more  than  fifty-five  years  he 
has  been  a  member  of  the  New  York  Bar  in  active  practice ; 
he  has  been  President  of  the  American  Bar  Association  and 
also  of  the  Association  of  the  Bar  of  the  City  of  New  York. 
On  this  day,  and  under  these  circumstances,  it  certainly  is 
justifiable  for  me  to  refer  to  the  words  uttered  on  an  appro- 
priate occasion  by  the  Honorable  Joseph  H.  Choate  a  few 
weeks  ago,  just  before  he  left  this  country  to  resume  those 
duties  as  our  ambassador  at  the  Court  of  St.  James,  which 
he  is  so  gracefully  and  efficiently  performing,  in  which  he 
described  my  father  as  "  the  very  Dean  of  our  profession  and 
entitled  to  be  so  called  not  only  by  reason  of  his  seniority, 
but  also  from  his  character,  and  the  manner  in  which,  during 
his  more  than  half  century  of  practice,  he  has  constantly  up- 
held the  honor  and  dignity  of  the  Bar." 

Had  these  volumes  been  dedicated  to  any  person  other  than 
my  father  or  grandfather,  two  names  would  have  presented 
themselves  to  me  between  which  it  would  have  been  hard 
for  me  to  have  chosen. 

Delivering  the  manuscript  to  the  publishers  about  a  year 
ago,  while  the  members  of  our  profession  were  universally 
preparing  for  the  appropriate  celebration  of  the  centennial 
anniversary  of  his  appointment  as  Chief  Justice  of  the  Su- 
preme Court  of  the  United  States,  the  name  of  that  great 
jurist,  John  Marshall,  naturally  presented  itself  to  my  mind, 
and  as  my  work  has  progressed,  my  veneration  and  respect 


VI  PREFACE. 

for  him  whom  John  Randolph  used  affectionately  to  call 
"the  Great  Lord  Chief"  has  constantly  increased,  for  it  is 
perhaps  more  to  him  than  to  any  other  single  man  that  this 
country  owes  to-day  its  ability  to  stand  among  the  other 
nations  on  an  equal  footing  as  a  fully  sovereign  power,  un- 
shorn of  any  element  of  national  strength  or  trammelled 
with  the  fetters  of  strict  construction  by  which  at  one 
time  it  was  threatened  to  be  strangled.  In  fact,  Mr.  Garfield 
might  well  have  added  to  that  eloquent  passage  in  his  mem- 
orial address,  in  which  he  declared  that  Marshall  found 
the  Constitution  a  skeleton  and  clothed  it  with  flesh  and 
blood,  that  the  Chief  Justice  also  breathed  into  the  body, 
which  he  thus  really  created,  the  breath  of  national  life 
and  sovereign  power  without  which  it  would  have  remained 
an  inert  mass,  but  through  the  possession  whereof  it  has 
been  able  to  live  and  move  and  have  its  being. 

It  is  hardly  necessary  to  mention  the  other  name  for  that 
of  William  McKinley  must  naturally  suggest  itself  to  the 
reader.  It  was  largely  due  to  his  kindly  inspiration  and 
the  friendly  interest  which  he  ever  expressed  in  this  and 
other  work  undertaken  by  myself  that  this  book  ^yas  conceived 
in  its  concrete  form  and  the  earlier  portions  thereof  completed. 
During  our  last  interview  the  plan  and  scope  of  these 
volumes  were  discussed  and  the  desire  which  he  expressed 
to  see  them  completed  was  one  of  the  inspiring  influences 
which  sustained  me  while  the  work  was  in  progress. 

That  Mr.  McKinley  was  pre-eminently  appreciative  of  the 
value  and  extent  of  the  treatj^-making  power  of  our  govern- 
ment, was  evidenced  by  those  utterances  in  his  Buffalo  speech 
which,  in  view  of  the  tragic  events  of  the  following  day, 
were  strangely  mystical  and  prophetic ;  and  surely  it  was 
not  by  chance,  for  the  hand  of  God  was  clearly  discernible, 
that  on  the  very  last  day  on  which  it  could  possibly  have 
occurred,  he  declared  that  the  day  of  reprisals  was  past. 


PREFACE.  Vll 

uiul  the  day  of  reciprocity  treaties  had  come,  that  God  and 
mail  had  joined  tlu;  nations  to<^'ethei',  that  our  ships  of  war 
must  now  be  white  winged  messengers  of  peace.  Surely  it 
can  well  be  said  of  him  that  this  country  is  the  greater  from 
the  way  in  which  he  lived  and  did  his  work,  and  is  the 
better  for  the  noble,  Christian  manner  in  which  he  passed 
from  this  earth  unto  his  lasting  reward,  leaving  precious 
memories  in  the  hearts  of  all  his  fellow  citizens  whom  he 
loved  and  served  so  well. 

But  his  words  must  be  heeded  and  no  monument  erected 
to  the  memory  of  William  McKinley,  no  matter  how  great 
or  liow  grand  it  may  be,  can  ever  atone  for  the  insult 
which  will  be  offered  to  his  memory  if  the  pledges  made  to 
Cuba  during  his  administration  shall  not  be  carried  out  in 
letter  and  in  spirit.  He,  to  whom  the  great  industries  of 
this  country  owe  so  much  and  who  could  never  have  had  one 
thought  which  could  do  them  harm,  stood  ])ledged  to  give 
assistance  as  well  as  freedom  to  that  island  whose  nearness 
to  our  coasts  made  us  her  natural  protector ;  and  now  that 
he  has  gone  a  double  duty  rests  upon  us  to  fulfil  those 
pledges,  not  only  for  the  sake  of  Cuba  but  for  his  honor  and 
our  own. 

Before  closing  this  preface  it  is  my  great  pleasure  to  grate- 
fully acknoudedge  the  assistance  which  has  been  received  dur- 
ing the  preparation  of  these  volumes  from  many  kind  friends ; 
it  is  impossible  to  enumerate  them  all  but  I  wish  especially 
to  thank  the  Honorable  Orville  H.  Piatt,  United  States 
Senator  from  Connecticut,  the  Honorable  Elihu  Eoot,  Secre- 
tary of  War,  Dr.  David  J.  Hill  and  Mr.  Alvey  A.  Adee,  As- 
sistant Secretaries  of  State,  Mr.  Andrew  H.  Allen,  keeper  of 
the  Rolls  and  Archives  in  the  State  Department  and  Mr. 
Charles  G.  Phelps  Secretary  of  the  Senate  Committee  on 
Relations  with  Cuba,  for  the  many  courtesies  extended  to, 
and  documents  obtained  for  me. 


vm  PREFACE. 

This  work  was  commenced  in  Washington  during  my  so- 
journ there  of  1898-1899,  but  for  the  past  two  years  it  has 
been  carried  on  in  New  York  almost  entirely  in  the  building 
of  the  Association  of  the  Bar  of  the  City  of  New  York  and 
it  is  not  only  my  duty,  but  also  my  pleasure,  to  express  in 
more  than  a  merely  perfunctory  manner  my  appreciation  of 
the  great  assistance  rendered  to  me  by  the  Librarian  and 
the  entire  staff  of  the  Association.  As  an  almost  daily  vis- 
itor to  the  librar\^  for  over  two  years  I  have  had  every  oppor- 
tunity of  testing  the  efficiency  of  the  staff  in  charge  of  the 
building  and  the  library  and  in  every  res^^ect  it  has  been 
tried  and  not  found  wanting. 

My  work  for  the  present  is  finished.  That  of  my  readers 
now  commences — my  greatest  hope  is  that  they  will  not  find 
their  task  in  perusing  these  pages  less  interesting  than  mine 
has  been  in  writing  them. 

C.  H.  B. 

Bab  Association  Libkaky,  New  York  City, 

February  20,  1902. 


TABLE  OF  CONTENTS 


OP 

VOLUME  I. 


I.  Preface i 

II.  Table  of  Contents ix 

III.  List  of  Authorities  referred  to xxiii 

IV.  Table  of  Cases xli 

INTRODUCTION. 

views  of  the  author  on  the  treaty-making  power  of  the  united 

states,  and  the  method  of  its  discussion  as  the  surject-matter 

of  this  volume.     pages  1-14. 

Section  page 

1 — Government  of  the  United  States  one  of  enumerated  powers.       1 

2 — Exceptions  to  general  rule  of  limitations  of  power 4 

3 — Author's  general  views  as  to  extent  of  treaty-making  power.       4 
4 — State  legislation  not  necessary  to  carry  out  treaty  stipula- 
tions        6 

5 — Treaties  made  by  United   States  Government  binding  on 

all  States 6 

6 — TreatiL  s  the  Supreme  law  of  the  land 7 

7 — Sources  of  author's  information  and  grounds  of  his  opinion.       7 
8 — Nationality  and  Sovereignty  of  the  United  States  to  be  first 

considered 9 

9 — Plan  of  discussion  of  subject 10 

10 — This  work  confined  to  United  States  law  and  decisions;  other 

work  contemplated  by  author 13 

PAET  I. 

THE  UNITED  STATES  IS  A  NATION. 

CHAPTER   I. 

THE   NATIONALITY    AND   SOVEREIGNTY   OP  THE   UNITED   STATES. 
PAGES  15-70. 

Section 

11 — Definitions  of  Terms  used  in  title  of  chapter 15 

Note  by  author  on  definitions:  "Nationality,"  16. 
"Sovereignty,"  16.  Bluntschli's  views,  18.  Cool- 
ey's  views  on  sovereignty,  19.  Curtis's  defini- 
tion, 20.  J.  R.  Tucker's  views,  2-2.  Bliss  on 
Sovereignty,  23.  Tucker's  Blackstone,  23.  Mean- 
ing of  "United  States,"  24.  Attorney  General 
Griggs's  position,  in  Insular  cases,  28. 

iz 


X  TABLE   OF   CONTENTS. 

Section  pagb 

12 — The  United  States  is  a  Nation 17 

13 — States'  Riglits  School  and  Broad  Constructionists 28 

Note  on  Kentucky  and  Virginia  Resolutions,  29. 

14 — Eras  of  Constitutional  History  of  the  United  States 30 

15 — Marshall,  Story  and  Gray;  Calhoun,  Taney  and  Tucker 31 

16 — John  Randolph  Tucker's  views 32 

17 — Discussion  limited  to  the  treaty-making  power 33 

18 — Duality  of  Government  of  United  States 33 

19 — Extent  of  original  State  sovereignty 34 

20— Original  nationality  and  sovereignty  of  Central  Government.  37 

21 — Residuum  of  power 38 

22 — Powers  reserved  to  States  relate  to  internal  affairs 39 

23 — Proposition  supported  by  eminent  jurists 41 

24 — National  Unity  expressed  in  Preamble  of  Constitution 42 

25 — Ratification  of  Amendments  by  States  result  of  delegation 

by  People 42 

26 — Supremacy  of  General  Government  as  to  objects  within  its 

domain 43 

27— Meaning  of  "  The  People  of  the  United  States  " 45 

Curtis  on  Marshall  and  Story,  46. 

Professor  Von  Hoist,  48. 

28 — ^Views  of  Chancellor  Kent  and  Joseph  Story 47 

29 — Samuel  F.  Miller's  views 52 

30 — Justice  Field's  opinion 53 

31 — Views  of  Justices  Gray  and  Bradley 54 

32 — Navassa  Islands  case 56 

Note  on  Guano  Island  Statutes  and  data,  56. 

33 — Right  of  United  States  to  acquire  territory 60 

34 — General  consensus  of  opinion  in  support  of  Nationality  of 

United  States 61 

85 — Gradual  development  of  theory  of  Nationality 61 

36 — Limitations  by  fundamental  principles 62 

37 — Views  of  ex-President  Harrison 63 

38 — Unsoundness  of  Mr.  Harrison's  views 64 

39 — Fundamental  principles  and  the  first  ten  amendments 65 

40 — Congress  compared,  as  to  powers  in  national  matters,  with 

Parliament  of  Great  Britain 67 

41^^imultaneous  development  of  nationality  and  limitations  by 

fundamental  principles  of  natural  and  healthy  growth. . .  69 

CHAPTER  II. 

the  nationality  and  sovkreignty  of  the  united  states  as  evi- 
denced by  acquisition  of  tekritory.     pages  71-136. 

Section 

42 — Development  of  United  States  from  a  Confederation  into  a 

Nation;  recognition  of  Sovereignty 72 

43 — Right  of  sovereign  powers  to  acquire  territory 72 

Note   on   transfer   of    Territory;   views    of    Publicists: 
Pomeroy,  72.     Halleck,  73.     Lawrence,  76. 


TABLE   OF   CONTENTS.  XI 

Section  paok 

44 — Methods  of  acquisition  of  territory 78 

Note  oa  acquisitions  of  territory  by  Uuited  States.     Ex- 
tract from  "  Our  Treaty  with  Spain,"  giving  list  of 
acquisitions,  79. 
45 — Cessions  of  Territory  to  other  powers  than  United  States. . .     80 
4(3_Cousent  of  governed  not  required  under  international  law. .     83 
47 — The  United  States  has  never  asked  the  consent  of  the  in- 
habitants of  ceded  territory 84 

48 — Impracticability  of  ascertaining  consent 86 

49 — Special  instances  in  which  obtaining  consent  might  be  prac- 
ticable      87 

50 — Kastrictions  on  acquisitions  of  territory  by  European  powers 

under  "  balance  of  power  "  theory 87 

51 — Acquisitions  of  Uuited  States  never  objected  to  by  other 

powers 88 

52 — Acquisitions  of  European  powers  prevented  by  United  States 

under  Monroe  Doctrine 89 

Note  on  Monroe  Doctrine:  Extracts  from  President 
Monroe's  Messages,  90.  The  Monroe  Doctrine,  95. 
The  Announcement,  97.  The  Holy  Alliance,  98. 
The  Panama  Congress,  102.  Other  Congresses, 
103.  Relations  with  Cuba,  104.  Mexican  inter- 
vention, 105.  Venezuela  boundary  dispute,  107. 
Recent  acquisitions,  110.  Opinions  of  publicists 
and  references,  111. 

53 — Russia's  colonization  on  Pacific  coast  stopped 94 

54 — England,  Central  and  South  America,  and  the  Monroe  Doc- 
trine      97 

55 — Spain,  Cuba,  and  the  Monroe  Doctrine 104 

56 — Louis  Napoleon,  Mexico,  and  the  Monroe  Doctrine 110 

57 — Germany  and  Samoa 113 

58 — Monroe  Doctrine  and  the  Peace  Conference  at  The  Hague; 

1899 1 14 

Extract  from  F.  W.  Holls'  "  Peace  Conference  " 115 

59 — Opposition  to  territorial  expansion  from  within,  and  not 

from  without 116 

60 — Right  to  acquire  territory  based  on  nationality  and  sover- 
eignty     117 

61 — Power  to  govern  acquired  territory;  The  Insular  cases,  1901.  117 

61a^Status  of  new  possessions 118 

616— Porto  Rico  and  the  Dingley  Act 119 

61c — The  status  of  the  Philippines;  the  Diamond  Ring  case 122 

61(Z — The  status  of  the  Hawaiian  Islands 122 

61e— The  Foraker  Act 123 

61/— Duties  paid  in  Porto  Rico 124 

61gr — The  Porto  Rico  Pilotage  case 126 

61h — Summary  of  decisions  in  Insular  cases 126 

62— The  Morman  Church  case;  Justice  Bradley's  opinion 128 

63 — Subsequent  cases  involving  same  point 129 


XU  TABLE   OF   CONTENTS. 

Section  page 

64 — Constitutional  limitations,    or  limitations  by  fundamental 

principles 129 

65 — Justice  Harlan's  opinion 130 

6(i — General  summary  of  views 130 

67 — Government  of  territories  as  affected  by  treaties  of  cession. .    131 

68 — Special  clauses  in  treaty  with  Spain  of  1898 131 

69 — States'  Rights  and  anti-expansion 132 

70 — Policy  of  expansion  and  acquisition  sustained  by  courts  and 

people 134 

71 — Territorial   expansion   the  Cornerstone  of  American  pros- 
perity    135 

CHAPTER  III. 

the  nationality  and  sovereignty  of  the  united  states  as  recog- 
nized by  other  sovereign  powers.    pages  137-190. 
Section 

72 — Subject,  so  far,  viewed  from  internal  standpoints 138 

73 — Subject  now  to  be  viewed  from  external  standpoints 138 

74 — Same  distinctions  exist  as  to  all  federated  powers 138 

75 — Recent  Insular  cases  decisions  only  involve  these  questions, 

from  internal  standpoints 139 

76 — Rule  from  external  standpoints  based  on  international  law. .   139 
77 — Undivided  sovereignty  of  governments  exercising  jurisdic- 
tion recognized  by  other  powers 140 

78 — Central  government  of  federations  the  only  one  recognized 

by  foreign  powers 140 

79 — Responsibilities  as  well  as  benefits  result  from  this  rule 141 

80 — Author's  views  briefly  expressed 141 

81 — Instances  in  which  the  question  has  arisen 142 

82 — The  case  of  the  "  Caroline  ; "  Great  Britain's  po.sition 142 

83 — McLeod's  connection  with  the  "  Caroline  "  ;  his  arrest  by 

New  York  State 143 

84 — Great  Britain's  position  expressed  by  Mr.  Fox 145 

85 — Mr.  Webster's  reply 146 

86 — Final  disposition  of  the  case;  McLeod's  acquittal 148 

87 — Federal  statutes  passed  to  meet  similar  cases 148 

88 — Anti-Spanish  riots  in  New  Orleans  of  1851 149 

89 — Mr.  Webster's  position 151 

90 — Indemnity  ultimately  paid  to  sufferers 153 

91— The  Mafia  riots  in  New  Orleans  of  1891 1.53 

92 — Complications  arising  from  the  Mafia  riots 154 

93 — Action  of  the  State  courts  of  Louisiana 154 

94 — Mr.  Blaine's  position 156 

95 — Final  result  of  the  Mafia  cases 157 

96 — The  '■^ Montijo^'  case;  claims  by  the  United  States  against 
other  confederations;    federal  responsibility  for  acts  of 

State IGO 

97 — Result  of  the  arbitration 161 


TABLE  OF   CONTENTS.  Xlll 

Sbotion                                                                                                    page 
98 — Decision  of  the  Umpire 161 

99 — Moore's  History  of  Interuational  Arbitration 163 

100 — Importance  of  the  "  Munlijo  "  decision  on  the  position  of  the 

United  States 165 

101 — Different  meanings  of  the  term  "  United  States"  when  con- 
sidered from  external  and  internal  standpoints  again  re- 
ferred to 166 

102 — Official  definition  of  the  word  "  country  " 166 

103 — Status  of  territory  conquered  by  military  forces  of  the  Uni- 
ted States 167 

104 — Fleming  \s.  Paye ;    The  Tampico  Duly  case;  Chief  Justice 

Taney's  opinion 168 

105 — The  position  reversed;  The  Cdstine  case;  War  of  1812;  Jus- 
tice Story's  opinion 171 

106— Status  of  Cuba 173 

The  Teller  Resolution,  173.     Stipulations  as  to  Cuba 
in  Spanish  treaty,  174.     The  Foraker  amendment, 
175.     Executive  Orders,  175.     Decision  in  Neely 
vs.  Henkel,  175.     The  Piatt  Amendment,  175. 
107 — Status  of  Cuba  involved  in  the  Neely  case ;  extradition. . . .   174 

Opinion  in  full  in  note,  178. 
108 — Uncertainty  as  to  status  of  Cuba  from  internal  standpoint, . .   179 
109 — National  unity  as  to  all  foreign  powers,  a  principle  enun- 
ciated by  the  Congress  of  the  Confederation  and  continued 
until  the  present  time 189 


PART  II. 

HISTORICAL   REVIEW  OF  THE  TREATY-MAKING  POWER  OF  THE 
UNITED   STATES. 

CHAPTER  IV. 
the  treaty-making  power  as  an  attribute  of  sovereignty  and 
as  exercised  by  central  governments  of  confederated  pow- 
ers,    pages  191 — 234. 
Section 

110 — Ancient  origin  of  treaties 191 

111 — Treaty-making  always  vested  in  highest  powers:  Professor 

Woolsey's  views 192 

112 — Views  of  Professor  Lawrence 194 

113 — Views  of  Henry  Wheaton 195 

114 — In  confederations  the  treaty-making  power  is  in  the  central 

government 196 

Extracts    from    Lawrence,    197.      Phillimore,    199. 
Gardner's  Institutes,  199. 

115— Views  of  Professor  Hall 198 

116 — Views  of  Professor  Pomeroy 200 


XIV  TABLE   OF   CONTENTS. 

Skction  page 

117 — Constitutional  limitations  on  treaty-making 201 

Extract  from  Gleuu,  202. 

118 — Commencement  of  modern  period  of  international  law 203 

119 — Disregard  of  colonies  in  treaties  made  by  European  powers 

as  to  American  affairs 203 

Note  on  treaties  affecting  America,  and  extracts 
therefrom,  204. 
120 — Treaty-making  power  of  Great  Britain  vested  in  the  Crown.  205 

Extract  from  Auson  on  the  Crown,  207. 
121 — Colonies  have  no  treaty-making  power  except  through  the 

Crown 208 

122 — Status  of  Dominion  of  Canada  as  to  treaty-making  power.     211 

123 — Concrete  example  of  above  principles 213 

Note  on  Anglo-American  Joint  High  Commission 
of  1898,  213. 
124 — Actual  practice  to  appoint  Commissioners  from  locality  af- 
fected     215 

125 — Territorial  origin  of  States  of  the  Union 215 

126 — No  State  or  Territory  ever  possessed  treaty-making  power 

except  Texas  and  Hawaii 217 

127 — That  of  Texas  and  Hawaii  ceased  on  their  becoming  part  of 

the  United  States 218 

128 — Treaty-making  power  of  Germany 220 

Extracts  from  Burgess,  220. 

129 — Treaty-making  power  of  South  American  countries 221 

130 — Other  instances  of  treaty -making  power 223 

Note  on  treaty-making  power  of  several  countries: 
Belguim,  223.  Germany,  224.  .Japan,  225.  Mex- 
ico, 225.  Honduras,  226.  Venezuela,  226.  Ar- 
gentine Republic,  227.  The  Confederate  States, 
229. 
131 — Treaty-making  power  as  an  attribute  of  sovereignty  evi- 
denced in  cases  of  cession  of  territory 228 

132 — General  application  of  principles 232 

133 — Power  only  to  be  exercised  by  governments  possessing  com- 
plete sovereignty 232 

Extracts  from  Lawrence,  233.     Phillimore,  234. 


CHAPTER  V. 

TREATIES,  AND  THE  TREATY-MAKIXG  POWER  OF  THE  UNITED  STATES  AS 
EXERCISED  PRIOR  TO  AND  UNDER  THE  CONFEDERATION.  PAGES  235- 
284. 

Section 
134 — Treaty  making  and  sovereignty  as  to  colonies  by  central  gov- 
ernments    236 

135_Colonies  as  the  subject  of  treaties  between  European  powers.  236 
136 — Nature  of  allegiancs  of  American  colonies  to  mother  coun- 
try   237 


TABLE   OF   CONTENTS.  XV 

Section  page 

137 — Birth  of  United  States;  Declaration  of  Independence 238 

Extract  from  Burgess,  239;  from  Curtis,  240. 

138 — Chishulin  vs.  Georgia ;  views  of  Cliief  Justice  Jay 242 

139 — Extent  of  sovereignty  in  the  Continental  Congress 242 

140 — States'  Rights  School  contention 243 

141 — Broader  views  of  M;irshall  and  others 244 

142 — Views  of  Calhoun  and  Tucker 244 

143 — Views  of  Calhoun  and  Tucker  refuted  by  Justice  Story  and 

others 246 

Story's  views,  246.  Curtis'  views,  247.  Cooley's 
views,  248.     Story,  251. 

144— Views  of  Justice  Miller  and  Mr.  Davis 251 

145 — The  Continental  Congress,  a  revolutionary  government 253 

146 — Nature  of  Congress  prior  to  Constitution 253 

147 — Independence,  preservation  of  States'  Rights,  National  unity 
— all  united  in  original  and  subsequent  governments,   of 

United  S  tates 254 

Note  on  National  unity  prior  to  Declaration  of  Inde- 
pendence, 254.  The  Association  of  1774,  255; 
The  Declaration  of  1775,  255. 

148 — Adoption  of  Articles  of  Confederation 257 

149 — National  unity  and  State  independence 257 

Professor  Von  Hoist's  views,  258. 
150 — Treaty-making  power  assumed  by  Congress  as  an  attribute 

of  sovereignty :   259 

151 — Treaties  with  France  made  with  States  by  name 261 

152 — Principles  established  by  treaties  with  Fi'ance 261 

153 — Advantages  derived  by  all  States  under  treaties  with  France.  262 

Extract  from  Rives'  Life  of  Madison,  264. 
154 — Treaties  with  France  concluded  prior  to  final  ratification  of 

Ai'ticles  of  Confederation 265 

155 — Great  extent  of  treaty-making  power  of  Congress  fully  ap- 
preciated by  States 266 

156 — Other  treaties  made  by  Congress 266 

Extracts  from  Secretary  John  Jay's  report  on  treat- 
ies and  State  laws  violating  same,  268. 

157 — Names  of  States  recited  in  preambles  of  treaties 268 

158 — Treaty  of  peace  with  Great  Britain 275 

159 — Special  provisions  of  Article  V 277 

160 — Other  treaties  made  by  Congress  under  Confederation  again 

referred  to 278 

Note  on  freedom  of  private  property  on  the  seas,  279. 
161 — Other  sovereign  and  national  powers  exercised  by  earlier 

Congresses 281 

162— Views  of  Justice  Story 282 

Extract  from  John  W.  Foster  on  treaties  of  the 
Confederation  2S3. 


XVI  TABLE   OF   CONTENTS. 

Section  page 

CHAPTER  VI. 

proceedings  of  the  constitutional  convention  of  1787  relating 
to  treaties  and  the  trea  i'y-m  akino  power  of  the  federal 
government.     pages  285-338. 

Section 

163— Critical  period  of  Araerican  history 286 

164 — Retrograde  from  unity 286 

Note  on  violations  by  States  of  treaty  stipulations, 
287. 

165— Inability  of  Central  Government  to  enforce  its  decrees 288 

166 — Dangers  appreciated  by  Washington  and  others 290 

167 — Unity  impossible  witliout  greater  power  in  Central  Gov- 
ernment    290 

Extract  from  Curtis,  291. 

168 — Constitutional  Convention  and  its  results 292 

Leading  members  of  Convention,  292. 
169 — Convention  a  unit  in  lodging  treaty-making  power  in  Cen- 
tral Government 294 

Note  on  authorities  on  Federal  and  State  Conven- 
tions, 294.     Elliot's  Debates,  295.     The  Journals 
of  Congress,  295.    The  Madison  Papers,  296.    Mad- 
ison's Journal,  296.    Yates,  296.    Bancroft,  Curtis, 
McMaster,  Fiske,  Meigs  and  others,  297. 
170 — Organization  of  Convention;  Washington  chosen  President. .  297 
Extract  from  John  W.  Foster  on  Benjamin  Frank- 
lin as  a  diplomat,  298. 
171 — Opening  business  of  Convention,  May  25th;  Randolph's  res- 
olutions, May  29th 300 

172— Pinckney's  plan;  treaties  to  be  made  by  Senate;  May  29th. .   301 
173 — Pinckney's  plan  to  negative  State  laws;  Madison's  views; 

June  8th 303 

174— Consideration  of  treaty-making  power;  June  13th 305 

175 — Mr.  Paterson's  "New  Jersey"  plan  submitted;  June  14th 

and  loth 305 

176 — Power  to  make  and  enforce  treaties  a  practical  matter  in 

1787 307 

177 — Work  of  Convention  continued ;  Alexander  Hamilton's  views, 

June  18th;  Mr.  Madison's  views,  June  19th 308 

178 — Mr.  Paterson's  views  contrasted  with  those  of  Mr.  Madison 

and  Mr.  Hamilton 310 

179 — Mr.  King's  views  on  sovereignty  of  States 312 

180 — Dangerous  differences  in  Convention  on  other  subjects;  com- 
promises reached 313 

181 — Luther  Martin's  motion  in  regard  to  treaties;  July  17th 313 

182 — Mr.  James  Wilson's  views  on  treaties 314 

183 —Committee  of  Detail;  resolutions  as  to  treaties;  July26th..   314 
184 — First  draft  submitted;  treaties  to  be  supreme  law;  August 

6th 315 

185 — Discussion  of  draft;  Colonel  Mason's  views;  August  15th. .  316 


TABLE   OF   CONTENTS.  XVU 

Section  page 

18(3 — Treaties  the   supreme   law;    resolutions   regarding  same; 

Auj^ust  23d 318 

187— Debate  as  to  ratification  of  Treaties;  A ugust  23d 319 

188— Amendments  to  draft  as  to  treaties  ;  August  25tli 321 

189 — Jurisdiction  of  Supreme  Court  over  treaty  cases;  Senate  to 

ratify  treaties;  September  4th-10cli 321 

190— Committee  to  make  final  draft;  President  to  make  treaties ; 

September  10th  and  12th 326 

Extract  from  ('urtis,  :J28. 
191 — Letter  to  Congress,  accompanying  Constitution  as  to  rati- 
fication by  the  people,  instead  of  by  legislatures,  of  the 

States 329 

192 — Constitution  adopted,  September  15th 330 

193— Constitution  signed;  Conventiim  adjourned;  September  17th.  331 

194 — What  the  records  of  the  Convention  demonstrate 331 

l!)j— Ratification  of  the  Constitution  by  the  people;  Madison's 

views 332 

Extract  from  Hare's  American  Constitutional  Law, 
335.     Extract  from  Curtis,  336. 

196 — Results  of  the  Convention;  Washington's  meditation 337 

"A  rising  or  a  setting  sun?"     Franklin's  doubts 
dispelled;  his  prophecy  fulfilled,  338. 

CHAPTER  VII. 

pkoceedings  of  the  constitutional  conventions  of  the  several 
states,  in  so  far  as  they  relate  to  the  treaty-making  power 
of  the  national  government.     pages  339-370. 

Section 

197 — Constitution  to  be  ratified  by  States .340 

198 — Delaware  the  first  State  to  ratify .341 

199 — Convention  meets  in  Pennsylvania;  prominent  members. . .  341 

200 — Views  of  minority  opposing  ratification 341 

201 — Subsequent   protest  of   minority  to  force  the  adoption  of 

amendments 342 

202 — Ratification  by  New  Jersey 343 

203 — Georgia  and  Connecticut  ratify;  conditions  in  other  States. .  343 

204 — Massachusetts  Convention  meets;  members  composing  it. . .  344 

205 — Position  of  Samuel  Adams;  Constitution  ratified 345 

206 — Ratification  by  Maryland ;  Luther  Martin's  protest 346 

207 — The  Constitution  in  South  Carolina;  Mr.  Pinckney's  views. .  347 

208 — Rawlin  Lowndes's  opposition:  Mr.  Pringle's  views 349 

209 — Other  views  expressed  on  treaty-making  power 352 

210 — Constitution  ratified  by  South  Carolina 352 

211 — Constitutional  convention  meets  in  Virginia 353 

212 — Opposition  led  by  Patrick  Henry 353 

Extract  from  Curtis  on  Patrick  Henry,  354. 

213 — Governor  Randolph's  position 355 

214 — Opposing  forces  in  Virginia  convention 355 

B 


XVlll  TABLE   OF   CONTENTS. 

Section  page 

215 — Mr.  Madison's  views 356 

216 — Mr.  Henry  agaiu  expresses  his  views 357 

217 — Mr.  Madison's  reply  to  Mr.  Henry 358 

218 — Treaty- making  power  as  it  afifected  Virginia;  the  navigation 

of  the  Mississippi 358 

219 — Patrick  Henry  on  the  prerogatives  of  the  King  of  Great  Bri- 
tain;  other  views 360 

220 — Views  of  Mr.  Corbin  on  necessity  of  treaty-making  powers 

in  Central  Government 361 

221 — Patrick  Henry's  views  as  to  effect  of  treaties  on  States 361 

222 — Mr.  Madison's  support  of  Constitutional  provisions  as  to 

treaties ;  final  debate 362 

22.3 — Constitution  finally  ratified  by  Virginia;  amendments  sug- 
gested    363 

224 — Ratification  by  New  Hampshire;  action  of  Rhode  Island; 

Convention  in  New  York 364 

225 — Personnel  of  New  York  Convention 365 

226 — Treaty-making  power  referred  to 365 

227 — North   Carolina  rejects  the  Constitution;    Judge  Iredell's 

views  on  treaty-making 366 

228 — Views  of  other  delegates 367 

229 — Mr.  Davie's  views,  continued 368 

230 — Resolutions  of  North  Carolina  as  to  position  of  that  State 

on  Constitution,  and  relations  to  other  States 368 

231 — Ratification  by  eleven  States  makes  Constitution  effective. .   370 

CHAPTER  VIII. 

the  tbeaty-making  power  as  a  factor  in  the  great  national 

debate  of  1787-8.    pages  371-392. 

Section 

232— Grandeur  of  the  Constitution  as  a  subject  for  study 372 

233 — Difficulty  of  selecting  extracts  from  prominent  writers 372 

234 — Constitutional  literature  divided  into  two  classes 372 

235— Pre-ratificati on  literature  a  large  element  in  procuring  adop- 
tion of  the  Constitution :    373 

List  of  pseiido  names    from    Ford's    Essays  and 
Pamphlets,  373. 

236— This  chapter  devoted  to  pre-ratification  literature 374 

237 — The  Federalist;  its  appearance  and  its  effect 374 

Note  on  the  Federalist.     1.  Editions,  374,  2.  An  English 
view,  375.     3.  A  French  view,  377. 
238— Treaty-making  power  referred  to  in  the  Federalist  and  in 

other  publications 378 

239 — The  Federalist,  No.  XXII;  reference  to  treaties 378 

240 — The  Federalist,  No.  XXIII;  the  treaty-making  power  should 

have  no  constitutional  shackles 379 

241 — The  Federalist,  No.  XXXIX;  duality  of  the  Central  Govern- 
ment     380 

242 — The  Federalist,  No.  XLII;  treaties  with  foreign  nations. .  . .   380 


TABLE   OF   CONTENTS.  XIX 

Section  page 

243 — The  Federalist,  No.  XLV;    enlargement  of  congressional 

powers 380 

244 — The  Federalist,  No.  LXIV;  importance  of  the  treaty-making 

power 381 

245 — The  Federalist,  No.  LXIV;  same  subject  continued 381 

24G — The  Federalist,  No.  LXIX;  the  treaty-making  power  of  the 

United  St;ites  compared  willi  that  of  Great  Britain 383 

247 — The  Federalist,  No.  LXXV;  advantages  of  the  United  States 

plan;  treaties  as  contracts 384 

248 — The  Federalist,  No.    LXXX;  treaty-making  power  of  Na- 
tional Government  necessary  for  peace  of  the  Union 385 

249— Authorship  of  the  Federalist. . .  .' 386 

2o0 — Other  publications  prior  to  ratification 387 

251 — Richard  Henry  Lee's  opposition;  the  "Federal  Farmer"..  387 

252 — Geoi-jre  Mason's  protest 389 

2.53 — Judge  Iredell's  answer;  "  Marcus" 389 

254 — David  Ramsay's  letters;  "  Civis  " 390 

255 — Public  knowledge  as  to  the  treaty-making  power  and  its  ef- 
fects    391 

25(5 — Importance   of    treaty-making   power   appreciated   by   the 

people,  and  by  the  delegates  to  State  conventions 392 

CHAPTER  IX. 

opinions  of  publicists,  histohians  axd  expouxders  of  the  consti- 
tution in  regard  to  the  extent  and  scope  of  the  treaty-mak- 
ing power  of  the  united  states.     pages  393-416. 

Section 

257 — Pre-ratification  literature  necessarily  academic 393 

258 — Different  status  of  post-ratification  literature 394 

259— Treaty-making  power  furnishes  many  questions  for  discus- 
sion     394 

260 — Opinions  of  liublicists — not  judicial  decisions — discussed  in 

this  chapter : 395 

261— Views  of  William  Rawle;  1825 395 

262 — Mr.  Rawle's  acquaintance  with  members  of  Constitutional 

Convention 397 

263— Views  of  William  A.  Duer ;  1833 398 

264 — George  Ticknor  Curtis'  Constitutional  History  of  the  United 

States 400 

265— Jose pli  Story,  the  Commentator  of  the  Constitution 404 

266 — Story's  views  on  Article  YI  of  the  Constitution 405 

267— Judge  Cooley's  "  Constitutional  Limitations;  "  1874 407 

268 — Professor  Pomeroy's  views 408 

269 — Professor  Pomeroy's  broad  views  in  regard  to  the  Executive 

and  foreign  relations 409 

270 — Professor  Pomeroy  on  State  statutes  and  treaty  stipulations.  410 
271 — Views  of  Story,  Iredell  and  Pomeroy  identical  as  to  State 

statutes  and  treaty  stipulations 411 


XX  TABLE   OF   CONTENTS. 

Section  page 

272— Chancellor  Kent's  opinion 412 

27o — Numerous  other  opinions  in  support  of  broadest  powers. . . .   413 
274 — Narrower  views  of  some  authorities  on  the  Constitution. . . .  413 

275 — John  Randolph  Tucker's  viewss 413 

276 — John  C.  Calliouu's  views 414 

277 — Improper  use  of  treaty  stipulations  as  to  urging  State  legis- 
lation  '.   415 

278 — This  chapter  confined  to  extent  of  treaty-making  power. .  . .  416 


CHAPTER  X. 

the  treaty-making  power  and  the  relations  of  both  houses 
of  congress  thereto,  as  the  same  has  been  the  sub.ject  of 
congressional  debate  and  action.     417-458. 

Section 
279 — First  Congress  under  Constitution  meets;  earliest  tariff  stat- 
utes    418 

280 — Power  of  United  States  to  protect  manufactures  discussed . .  418 

Extract  from  Thompson's  History  of  the  Tariffs.     419. 
281 — Department  of  Foreign   Affairs  established;  State  Depart- 
ment    420 

282— No  treaties  negotiated  until  1794 420 

283 — Jay's  treaty;  excitement  and  opposition 421 

284 — Strained  relations  between  United  States  and  Great  Britian; 

AYashington's  message 421 

285 — Rights  of  the  people;   necessity  of  legislation  to  enforce 

the  treaty 422 

286 — General  discussion  of  these  questions 423 

287 — John  Jay's  mission  to  England;  negotiation  of  treaty 423 

288 — Ratification  of  treaty  with  amendment 424 

289 — Popular  excitement;  French  and  English  parties 424 

290 — Meeting  of  Congress;  Message  of  the  President 424 

291 — Request  of  House  of  Representatives  for  papers  relating  to 

treaty 425 

292 — President  Washington's  reply  to  the  House 426 

293 — Eft'ect  of  Washington's  reply;  action  by  the  House 427 

294 — Other  treaties  ratified  by  the  Senate,  and  before  the  House. .  428 
295 — Fisher  Ames's  address  and  argument;  treaty  legislation  en- 
acted    429 

296 — Position  of  House  of  Representatives  in  treaty  matters  de- 
fined    429 

297— Practical  results  of  this  method 430 

298 — Good  faith  in  this  respect  always  shown  by  Congress 431 

299 —Subsequent  debates  in  Congress  on  same  subject 432 

300— After  commercial  treaty  of  1815  with  Great  Britian 432 

301 — Views  of  Mr.  King  of  Massachusetts 433 

302 — Presentation  of  other  side  by  Mr.  Hardin 434 

303 — Result  of  conference ;  extract  from  report 436 


TABLE    OF    CONTENTS.  XXI 

Section  page 

304 — President  Jackson's  views  in  1834  in  regard  to  French  treaty 

of  1831 437 

305 — Question  again  raised  regarding  Alaska  purchase  in  1867.  .  438 
306 — Position  of   House  on  Ahiska  i)urclmse;  the  Senate  makes 

concessions 439 

307 — Question  raised  in  1887  on  Hawaiian  reciprocity  treaty;  Mr. 

Tucker's  report 439 

308 — Treaty  of  Paris  witli  Spain,  1898;  what  legislation  necessary.  441 

309 — Opinions  of  puhlicists  on  this  suhject 444 

Note — Extracts  from  Wluirton's  Digest.  Kent.  445. 
Duer.  445.  Calhoun.  446.  Wheaton.  446.  A  Ger- 
man view.     447. 

310 — Supreme  Court  decisions  on  this  subject 448 

311 — General  conclusions;    power  of  Congress  to  frustrate  and 

abrogate  treaties 448 

312 — Moral  and  ethical  questions  arising 449 

313 — Alexander  Hamilton's  views  in  Federalist  not  followed  by 

Supreme  Court 449 

314 — Position  of  Supreme  Court  as  to  treaty  violations;  burden 

thrown  on  Congress 451 

315 — Difference  between  municipal  and  international  law  in  this 

respect 451 

316 — Treaty  with  Denmark  considered  in  this  respect;  tariff  leg- 
islation     452 

317 — Chinese  exclusion;  conflict  of  statutes  and  treaties;  opinion 

of  Justice  Field 454 

318 — This  same  subject  treated  at  length  in  a  subsequent  chapter.  456 

INSULAR  CASES  APPENDIX. 
Synopsis  of  cases  and  decisions  and  analysis  of  cases  cited 

in  buiefs,  arguments  and  opinions 459-585 

Consult  special  index  on  pages  461-464. 


TABLE  OF  CONTENTS  OF  VOLUME  II. 
PART  III. 

JUDICIAL    DECISIONS    AFFECTING  THE  TREATY-MAKING    POWER  OF  THE 
UNITED  STATES,  ITS  EXTENT  AND  APPLICATION. 

CHAPTER  XI. 

PAGES  OF  VOL.  II 

Judicial  decisions  in  regard  to  the  relative  effect  of  treaty  stipula- 
tions and  State  laws 1-62 

CHAPTER   XII. 
Decisions  of  Federal  courts  in  regard  to  the  relative  effect  of  treaty 
stipulations  and  Congressional  action 63-148 


xxii  TABLE   OF   CONTENTS. 

CHAPTER  XIII. 

PAGES  OF  VOL.  II 

Treaties  of  cession  involving  change  of  sovereignty  over  tlic  ceded 
territory  and  the  etlect  thereof  on  hiws,  persons  and  property .   149-194 

CHAPTER  XIV. 

The  treaty-making  power  of  the  United  States  as  it  has  been  exer- 
cised with  Indian  tribes 

CHAPTER  XV. 

Certain  specific  instances  in  which  treaty-making  power  has  been 
exercised  by  United  States 237-348 

CHAPTER  XVI. 
Limitations  on  the  treaty-making  power  of  the  United  States. .  349-404 

TREATIES  APPENDIX. 

CONTAIKING  A  LIST  OF  TKEATIES,  CONVENTIONS,  AGREEMENTS  AND 
PKOTOCOLS  WITH,  AND  PROCLAMATIONS  AFFECTING  FOREIGN 
COUNTRIES,  ARRANGED  ALPHABETICALLY  ACCORDING  TO  COUN- 
TRIES   405-532 

Consult  special  index  thereto 405-409 

INDEX. 

Analytical  index  to  volumes  I  and  II  arranged  according 

TO  SUBJECTS    and    NAMES   WITH   REFERENCES  TO  PAGES .  .    533  tO  end 


TABLE  OF  AUTHORITIES  REFERRED  TO. 


In  preparing  this  list  of  authorities  the  author  has  not  intended  to 
simply  preface  his  work  with  a  bibliography  of  the  various  subjects 
discussed  in  the  volume;  had  he  intended  to  do  so  the  following  list 
would  have  been  very  incomplete  as  it  simply  includes  most  of  the  books 
from  which  quotations  have  been  made  in  the  text,  or  which  have  been 
consulted,  and  relied  upon,  by  the  author.  This  list,  of  course,  does  not 
include  any  official  reports  or  digests  of  Federal  or  State  courts,  opin- 
ions of  the  Attorney-General,  or  publications  contaiuiug  the  statutes  of 
Federal  and  State  legislative  bodies. 

In  specifying  editions  the  author  has  not  intended  to  express  any 
preference  for  those  particularly  referred  to,  but  simply  to  indicate 
that  such  edition  was  used  by  him  because  it  was  the  most  accessible; 
in  all  cases,  however,  he  has  endeavored  to  use  the  latest  editit)n  of 
standard  works.  Almost  all  of  the  books  referred  to  can  be  found  in 
the  library  of  The  Association  of  the  Bar  of  New  York  City.  Biogra- 
phies are  classed  under  the  name  of  the  subject,  other  books  with  few 
excejitions  under  the  name  of  the  author;  subjects  and  authors  are  in- 
dexed in  detail  in  the  general  index  to  the  volume.  The  description  of 
the  book  is  as  a  general  rule  the  title  page  of  the  first  volume.  Only  a 
few  of  the  Government  publications  consulted  are  referred  to  in  this 
list. 

H.  C.  ADAMS;  Public  Debts. 
Public  Debts;  An  Essay  in  the  Science  of  Finance,  by  Henry  C. 
Adams,  Ph.  D.,  of  the  University  of  Michigan,  and  Cornell  University 
New  York,  D.  Appleton  &  Co.,  1890. 

LIFE  OF  SAMUEL  ADAMS;  James  K.  Hosmer. 
American  Statesmen  Series.     Samuel  Adams,  by  James  K.  Hosmer, 
Professor  in  Washington  University,  St.  Louis,  Missouri.    7th  edition. 
Boston  and  New  York,  Houghton,  Mifflin  &  Co.,  The  Kiverside  Press, 
Cambridge,  1888. 

SHELDON  AMOS;  Fifty  Years  of  the  English  Constitution. 

Fifty  Years  of  the  English  Constitution,  1830-1880,  by  Sheldon  Amos, 
M.  A.,  Barrister-at-Law,  late  Professor  of  Jurisprudence  in  University 
College,  London;  and  of  Jurisprudence  and  Constitutional  Law  and 
Legal  History  to  the  Inns  Courts;  Late  Examiner  in  the  Constitutional 
History  of  England  to  the  University  of  London;  author  of  "  A  Primer 
of  the  English  Constitution,"  "  A  Systematic  View  of  the  Science  of 
Jurisprudence,"  etc.     Boston,  Little,  Brown  &  Co.,  1880. 

(xxiii) 


XXIV  TABLE  OF  AUTHORITIES. 

SIK  WILLIAM  R.  ANSOX;  Anson's  Law  of  the  Constitution; 
Pakt  II,  Thk  Crown. 
The  Law  and  Custom  of  the  Constitution,  Part  II,  The  Crown,  by  Sir 
William  R.  Auson,  Bart.,  D.  C.  L.,  of  the  Inner  Temple,  Barrister-at- 
Law,  Warden  of  All  Soul's  College,  Oxford.  Second  edition,  Oxford, 
at  the  Clarendon  Press,  London,  Henry  Frowde  and  Stevens  &  Sons, 
Limited,  1896. 

WALTER    BAGEHOT;  Fobest    Morgan's    Edition  of    Bagehot's 

Works. 
The  Works  of  Walter  Bagehot,  M.  A.,  and  Fellow  of  University  Col- 
lege of  London,  with  memoirs  by  R.  H.  Hutton,  now  first  published  in 
full  by  The  Traveller's  Insurance  Company  of  Hartford,  Conn.,  edited 
by  Forest  Morgan,  in  5  volumes,  Hartford,  1891. 

SIR  SHERSTON  BAKER;  Halleck's  International  Law. 
Halleck's  International  Law,  or  Rules  Regulating  the  Intercourse  of 
States  in  Peace  and  War.  Third  edition  thoroughly  revised  and  in 
many  parts  rewritten.  By  Sir  Sherstou  Baker,  Bart.,  of  Lincoln's  Inn, 
and  of  the  Western  Circuit,  Barrister-at-Law ;  author  of  "The  Laws 
Relating  to  Quarantine,"  "The  Office  of  the  Vice-Admiral,"  etc.,  2  vol- 
umes, London,  Kegan,  Paul,  Trench,  Trubner  &  Co.,  Limited,  1893. 

GEORGE  BANCROFT;  History  of  the  United  States. 
History  of  the  United  States  of  America,  from  the  Discovery  of  the 
Continent,  by  George   Bancroft.     The  author's  last  revision.     In  six 
volumes.     New  York,  D.  Appleton  &  Co.  1892. 

GEORGE  BANCROFT;  History  of  the  Constitution. 
History  of  the  Formation  of  the  Constitution  of  the  United  States  of 
America,  by  George  Bancroft.     In  two  volumes.     Sixth  edition.     New 
York,  D.  Appleton  &  Co.,  189.3. 

THOMAS  H.  BENTON ;  Thirty  Years  in  the  United  States  Senate, 
Thirty  Years'  Views,  or  a  History  of  the  Working  of  the  American 
Government  for  Thirty  Years,  from  1820  to  1850.  Chiefly  taken  from 
the  Congress  Debates,  the  private  papers  of  General  Jackson  and  the 
speeches  of  ex-Senator  Benton,  with  his  actual  view  of  men  and  affairs; 
with  historical  notes  and  illustrations,  and  some  notices  of  eminent  de- 
ceased contemporaries,  by  a  Senator  of  Thirty  Years.  In  two  volumes. 
Vol.  I.  New  York  and  London,  D.  Appleton  &  Company,  1854.  (Vol.  II. 
New  York,  D,  Appleton  &  Company;  Cincinnati,  W,  A,  Clarke  &  Co,, 
1856.) 

SIR  WILLI A.M  BLACKSTONE;  see  Chase  and  Tucker. 

JAMES  G.  BLAINE;  Twenty  Years  of  Congress,  1861-1881. 
Twenty  Years  of  Congress,  from  Lincoln  to  Garfield.     With  a  review 
of  the  events  which  led  to  the  political  revolution  of  1860,  by  James  G. 


TABLE  OF  AUTHORITIES.  XXV 

Blaine.     In  two  volumes;  volume  I,  Norwich,  Conn.,  The  Henry  Bill 

Publishing  Company,  1884.     (Vol.  II,  1886.) 

PHILEMON  BLISS;  Bliss  on  Sovereignty. 

Of  Sovereignty.  By  Philemon  Bliss,  LL.D.,  Professor  of  Law  in  the 
State  University  of  Missouri;  author  of  "Bliss  on  Code  Pleading." 
Boston,  Little,  Brown  &  Company,  1885. 

J.  K.  BLUNTSCHLI;  The  Theory  of  the  State. 

The  Theory  of  the  State,  by  J.  K.  Bluntschli,  late  Professor  of  Po- 
litical Sciences  in  the  University  of  Heidelberg.  Authorized  Euglibh 
translation  from  the  sixth  German  edition.  Oxford,  at  the  Clarendon 
Press,  1885. 

GEORGE  S.  BOUT  WELL;  The  Constitution  of  the  United  States 
AT  the  End  of  the  Fikst  Century. 

The  Constitution  of  the  United  States  at  the  End  of  the  First  Cen- 
tury, by  George  S.  Boutwell.  Boston,  U.  S.  A.,  D.  C.  Heath  &  Co., 
1895. 

A.  C.  BOYD;  Wheaton's  International  Law. 

Elements  of  International  Law,  by  Henry  Wheaton,  LL.D.,  Minister 
of  the  United  States  at  the  Court  of  Prussia;  Corresponding  Member 
of  the  Academy  of  Moral  and  Political  Sciences  in  the  Institute  of 
France;  Honorary  Member  of  the  Royal  Academy  of  Sciences  at  Ber- 
lin, etc.  Third  English  edition,  edited  with  Notes,  and  an  Appendix 
of  Statutes  and  Treaties,  bringing  the  work  down  to  the  present  time. 
By  A.  B.  Boyd,  Esq.,  LL.B.  (Camb.),  J.  P.,  Barrister-at-Law  of  the  In- 
ner Temple  and  Midland  Circuit,  author  of  "  The  Merchant  Shipping 
Laws."     London,  Stevens  and  Sons,  Limited,  1889. 

JAMES  BRTCE;  The  American  Commonwealth. 

The  American  Commonwealth,  by  James  Bryce,  author  of  "  The  Holy 
Roman  Empire,"  M.  P.  for  Aberdeen.  In  two  volumes.  London,  Mac- 
millanand  Co.,  and  New  York,  1889. 

JOHNW.  BURGESS;  Political  Science  and  Constitutional  Law. 

Political  Science  and  Comparative  Constitutional  Law;  volume  1, 
Sovereignty  and  Liberty;  volume  2,  Government.  By  John  W.  Bur- 
gess, Ph.D.,  LL.D.,  Professor  of  History,  Political  Science  and  Interna- 
tional Law,  Dean  of  the  University  Faculty  of  Political  Science  in 
Columbia  College.  Boston,  U.  S.  A.,  and  London,  Ginn  &  Company, 
1891. 

JOHN  L.  CADWALADER;  Digest  of  Opinions  and  Leading  Cases 
ON  International  Law. 

Digest  of  the  published  Opinions  of  the  Attorneys-General,  and  of 
the  Leading  Decisions  of  the  Federal  Courts,  with  reference  to  Inter- 


XXVI  TABLE  OF  AUTHOlUTIES. 

national  Law,  Treaties,  and  Kindred  Subjects.     By  John  L.  Cadwalader, 
"Wushiuglou,  Government  Printing  Office,  1877. 

JOHN  C.  CALHOUN;  Works  of;  see  R.  C.  Cralle,  Editor. 

JAMES  MORTON  CALLAHAN;  Cuba  axd  International  Rela- 
tions. 
An  Historical  Study  in  American  Diplomacy,  by  James  Morton  Cal- 
lahan,  Ph.  I).     Albert  Shaw,   Lecturer  in  Diplomatic  History,   Johns 
Hopkins  University.     Tlie  Johns  Hopkins  Press,  Baltimore,  1899. 

HAMPTON  L.  CARSON;  lOOrn  Anniversary  of  the  Constitution 
of  the  United  States. 
History  of  the  Celebration  of  the  One  Hundredth  Anniversary  of  the 
promulgation  of  the  Constitution  of  the  United  States,  edited  by  Hamp- 
ton L.  Carson,  Secretary  of  the  Constitutional  Centennial  Commission. 
In  two  volumes,  with  illustrations.  Published  under  the  direction  and 
by  the  authority  of  the  Commission,  by  J.  B.  Lippincott  Company, 
Philadelphia,  1889. 

HAMPTON  L.  CARSON;  History  of  the  Supreme  Court  of  the 
United  States. 
The  Supreme  Court  of  the  United  States:  Its  History  by  Hampton  L. 
Carson  of  the  Philadelphia  Bar,  and  Its  Centennial  Celebration,  Febru- 
ary 4,  1890.  Prepared  under  direction  of  The  Judiciary  Centennial 
Committee.     Philadelphia,  John  Y.  Huber  Company,  1891. 

GEORGE  CHASE;  Blackstone's  Commentaries. 
Commentaries  on  The  Laws  of  England;  In  Four  Bonks,  by  Sir 
William  Blackstone,  Knight,  one  of  the  Justices  of  the  Court  of  Com- 
mon Pleas.  So  abridged  as  to  retain  all  portions  of  the  original  work 
which  are  of  historical  or  practical  value.  With  notes,  and  references 
to  American  decisions;  for  the  use  of  American  students.  By  George 
Chase,  LL.  B.,  Professor  of  Law  in  the  Law  School  of  Columbia  Col- 
lege, N.  Y.  Editor  of  Stephen's  Digest  of  the  Law  of  Evidence  (Ameri- 
can edition).  Third  edition.  New  York  and  Albany,  Banks  and  Broth- 
ers, 1890. 

SIR  EDWARD  CLARKE;  Clarke's  Law  of  Extradition. 
A  Treatise  upon  the  Law  of  Extradition.  With  the  Conventions 
upon  the  Subject  existing  between  England  and  Foreign  Nations,  and 
the  Cases  decided  therein.  By  Sir  Edward  Clarke,  Knt.,  Her  Majesty's 
Solicitor  General;  formerly  Tancred  Student  of  Lincoln's  Inn.  Third 
edition.     London,  Stevens  and  Haynes,  1888. 

LIFE  OF  HENRY  CLAY;  Carl  Schurz. 
American  Statesmen  Series.     Life  of  Henry  Clay,  by  Carl  Schurz,  in 
two  volumes.     Boston  and  New  York,  Houghton,  Mifflin  &  Co.,  The 
Riverside  Press,  Cambridge,  1888. 


TABLE  OF  AUTHORITIES.  XXVU 

CLAYTON-BULWER  TREATY. 
Correspondence  in  relation  to  the  Proposed  lateroceanic  Canal  be- 
tween tlie  Atlantic  and  Pacific  Oceans,  The  Clayton-Bulwer  Treaty  and 
the  Monroe  Doctrine;  being  a  reprint  of  Senate  Executive  Documents 
No.  112,  4(5th  Congress,  2d  Session;  No.  194,  47th  Congress,  1st  Session; 
and  No.  2(5,  48tli  Congress,  1st  Session.  Washington,  Government 
Printing  Office,  1885. 

THOMAS  M.  COOLEY;  Cooley's  Constitutional  Limitations. 

A  Treatise  on  the  Constitutional  Limitations  which  rest  upon  the 
Legislative  Power  of  the  States  of  the  American  Union.  By  Thomas 
M.  Cooley,  LL.  D.,  formerly  one  of  the  Justices  of  the  Supreme  Court 
of  Michigan,  and  Jay  Professor  of  Law  in  the  University  of  Michigan; 
now  Chairman  of  the  Intei'state  Commerce  Commission.  Sixth  edi- 
tion, with  large  additions,  giving  the  results  of  the  recent  cases,  by 
Alexis  C.  Angell,  of  the  Detroit  Bar.  Boston,  Little,  Brown  ife  Com- 
pany, 1890. 

THOMAS  M.  COOLEY;  Principles  of  Constitutional  Law. 
Student's  Series.  The  General  Principles  of  Constitutional  Law  in 
the  United  States  of  America,  by  Thomas  M.  Cooley,  LL.  D.,  author 
of  "Constitutional  Limitations,"  etc.  Third  edition  by  Andrew  C. 
McLaughlin,  A.  M.,  LL.  B.,  Professor  of  American  History,  University 
of  Michigan.     Boston,  Little,  Brown  &  Company,  1898. 

HOMERSHAM  COX;  The  Institutions  of  the  English  Govern- 
ment. 
The  Institutions  of  the  English  Government:  being  an  account  of  The 
Constitution,  Powers,  and  Procedure,  of  its  Legislative,  Judicial,  and 
Administrative  Departments.  With  copious  references  to  ancient  and 
modern  authorities.  By  Homersham  Cox,  M.  A.,  Barrister-at-Law. 
author  of  "  The  British  Commonwealth,"  etc.  London,  H.  Sweet,  1863. 

BRINTON  COXE;  Judicial  Power  and  Unconstitutional  Legis- 
lation. 
An  Essay  on  Judicial  Power  and  Unconstitutional  Legislation,  being 
a  Commentary  on  Parts  of  the  Constitution  of  the  United  States,  by 
Brinton  Coxe,  of  the  Bar  of  Philadelphia;  Kay  and  Brother,  Philadel- 
phia, 1893. 

RICHARD  K.  CRALLE;  Works  op  John  C.  Calhoun. 
A  Disquisition  on  Government  and  a  Discourse  on  the  Constitution 
and  Government  of  the  United  States,  by  John  C.  Calhoun.     In  six  vol- 
umes.    Edited  by  Richard  K.  Cralle.     New  York,  D.  Appleton  &  Com- 
pany,  1888. 

SIR  EDWARD  CREASY;    The   Constitutions  of  the   Britannic 

Empire. 
The  Imperial  and  Colonial  Constitutions  of  the  Britannic  Empire  in- 


XXVm  TABLE  OF  AUTHORITIES. 

eluding  Indian  Institutions,  by  Sir  Edward  Creasy,  M.  A.,  author  of 
"  The  Rise  and  Progress  of  tlio  English  Constitution,"  "  The  History  of 
England,"  etc.     Loudon,  Lougmans,  Green  and  Co.,  1872. 

SIR  EDWARD  CREASY;  History  of  the  English  Constitution. 

The  Rise  and  Progress  of  the  English  Constitution  by  Sir  Edward 
Creasy,  M.  A.,  late  Chief  Justice  of  Ceylon,  author  of  "  The  Fifteen 
Decisive  Battles  of  the  World,"  etc.  Fourteenth  edition.  London: 
Ricliard  Beutly  &  Son,  Publishers  in  Ordinary  to  Her  Majesty  the  Queen, 
1880. 

GEORGE  TICKNOR  CURTIS;  Constitutional  History  of  the 
United  States. 
Constitutional  History  of  The  United  States  from  their  Declaration 
of  Independence  to  the  close  of  their  Civil  Wai-,  by  George  Ticknor 
Curtis.  In  two  volumes,  New  York,  Harper  &  Brothers,  1889.  (Vol.  11 
edited  by  Joseph  Culbertson  Clayton,  1896.) 

R.  H.  DANA,  Jr.;  Wheaton's  International  Law. 
Elements  of  International  Law.  By  Henry  Wheaton,  LL.  D.,  Min- 
ister of  the  United  States  at  the  Court  of  Prussia;  Corresponding 
Member  of  the  Academy  of  Moral  and  Political  Sciences  in  the  Insti- 
tute of  France;  Honorary  Member  of  the  Royal  Academy  of  Science  at 
Berlin,  etc.  Eighth  edition.  Edited,  with  notes,  by  Richard  Henry 
Dana,  Jr.,  LL.  D.     Boston,  Little,  Brown  &  Company,  1866. 

J.  C.  BANCROFT  DAVIS;  see  Samuel  F.  Milleb. 

HENRY  B.  DAWSON;  The  Federalist. 
The  Foederalist;  a  Collection  of  Essays,  written  in  favor  of  the  new 
Constitution,  as  agreed  upon  by  the  Federal  Convention,  September  17, 
1787.  Reprinted  from  the  original  text,  under  the  editorial  supervision 
of  Henry  B.  Dawson.  University  edition  New  York,  Charles  Scrib- 
ner  &  Company,  1870. 

A.  V.  DICEY;  Dicey  on  The  Constitution. 
Introduction  to  the  study  of  The  Law  of  the  Constitution,  by  A.  V. 
Dicey,  B.  C.  L.,  of  tlie  Inner  Temple:  Vinerian  Professor  of  English 
Law,  Fellow  of  All  Soul's  College,  Oxford,  Hon.  LL.  D.,  Glasgow  and 
Edinburgh.  Fourth  edition.  London  and  New  York,  Macmillan  &  Co., 
1893. 

WILLIAM   ALEXANDER   DUER;    Dueb's  Constitutional  Jueis- 

prudence. 
A  Course  of  Lectures  on  the  Constitutional  Jurisprudence  of  the 
United  States;  delivered  annually  in  Columbia  College,  New  York,  by 
William  Alexander  Duer,  LL.  D.,  Late  President  of  that  Institution, 
The  second  edition,  revised,  enlarged  and  adapted  to  professional,  as 
well  as  general,  use.     Boston,  Little,  Brown  &  Company,  1856. 


TABLE  OF  AUTHORITIES.  XXIX 

JONATHAN  ELLIOTT;  Elliott's  Debates. 
The  Debates  in  the  several  State  Conventions,  on  the  adoption  of  the 
Federal  Constitution,  as  recommended  by  the  General  Convention  at 
Philadelphia,  in  1787,  together  with  the  Journal  of  the  Federal  Con- 
vention, Luther  Martin's  Letter,  Yate's  Minutes,  Congressional  Opinions, 
Virginia  and  Kentucky  Resolutions  of  '98-'99,  and  other  illustrations 
of  the  Constitution.  In  five  volumes,  second  edition,  vyitli  considerable 
additions.  Collected  and  Revised  from  Contemporary  Publications,  by 
Jonathan  Elliot.  Published  under  the  sanction  of  Congress.  Phila- 
delphia, J.  B.  Lippincott  &  Co.,  Washington,  Taylor  &  Maury,  1866. 

JONATHAN  ELLIOT;  Elliot's  Debates  on  the  Federal  Consti- 
tution; Supplement — The  Madison  Papers. 
Debates  on  the  Adoption  of  the  Federal  Constitution,  in  the  Conven- 
tion held  at  Philadelphia,  in  1787;  with  a  Diary  of  the  Debates  of  The 
Congress  of  the  Confederation;  as  reported  by  James  Madison  a  Mem- 
ber and  Deputy  from  Viiginia.  Revised  and  newly  arranged  by  Jona- 
than Elliott.  Complete  in  one  volume.  Vol.  V.  Supplementary  to 
Elliot's  Debates.  Published  under  the  sanction  of  Congress.  Phila- 
delphia, J,  B.  Lippincott  &  Co.,  Washington,  Taylor  &  Maury,  1866. 

THE  FEDERALIST;  see  Dawson,  J.  C.  Hamilton  and  Lodge. 

JOHN  FISKE ;  The  Critical  Period  of  American  History. 
The  Critical  Period  of  American  History,  1783-1789,  by  John  Fiske. 
Boston  and  New  York,  Houghton,  Mifflin  &  Company,  The  Riverside 
Press,  Cambridge,  1899. 

PAUL  LEICESTER  FORD;  Essays  on  the  Constitution,  1787-8. 

Essays  on  the  Constitution  of  the  United  States,  published  during  its 
discussion  by  the  people,  1787-1788.  Edited  by  Paul  Leicester  Ford. 
Brooklyn,  N.  Y.,  Historical  Printing  Club,  1892. 

PAUL  LEICESTER  FORD;  Pamphlets  on  the  Constitution,  1787-8. 
Pamphlets  on  the  Constitution  of  the  United  States,  published  during 
its  discussion  by  the  people,  1787-1788.     Edited  with  notes  and  a  bib- 
liography, by  Paul  Leicester  Ford.     Brooklyn,  N.  Y.  1888. 

JOHN  W.  FOSTER;  A  Century  of  American  Diplomacy. 
A  Century  of  American  Diplomacy,  being  a  brief  review  of  the  For- 
eign Relations  of  the  United  States,  1776-1876,  by  John  W.  Foster,  Bos- 
ton and  New  York,  Houghton,  Mifflin  &  Company,  Riverside  Press, 
Cambridge,  1901. 

EDWARD  A.  FREEMAN;  Growth  of  the  English  Constitution. 

The  Growtli  of  the  English  Constitution  from  the  earliest  times  by 
Edward  A.  Freeman,  M.  A.,  Hon.  D.  C.  L.,  Late  Fellow  of  Trinity  Col- 
lege, Oxford.     London,  Macmillan  &  Co.,  1872. 


XXX  TABLE  OF  AUTHORITIES. 

DANIEL  GARDNER;    Gardxkr's  Institutes,  American  Inter- 
national Law. 
Institutes  of  luteniational  Law,  Public  and  Private,  as  settled  by  the 
Supreme  Court  of  the  United  States,  and  by  uur  Republic.    With  refer- 
ences to  Judicial  Decisions.     By  Daniel  Gardner,  Esq.,   Counsellor  at 
Law,  of  the  New  York  Bar.     New  York,  John  S.  Voorhies,  18G0. 

JAMES  W.  GERARD;  The  Peace  of  Utrecht. 
The  Peace  of  Utrecht.     An  Historical  Review  of  the  Great  Treaty  of 
1713-14,  and  of  the  Principal  Events  of  the  War  of  the  Spanish  Succes- 
sion.    By  James  W.  Gerard.     New  York  and  London,  G.  P.  Putnam's 
Sons,  The  Knickerbocker  Press,  1885. 

EDWIN  F.  GLENN;  Glenn's  International  Law. 
Hand  Book  of  International  Law  by  Captain  Edwin  F.  Glenn,  Acting 
Judge  Advocate  United  States  Army.     St.  Paul,  Minn.,  West  Publishing 
Co.,  1895. 

RUDOLPH  GNEIST;  Gneist's  History  of  the  English  Constitu- 
tion. 
The  History  of  the  English  Constitution  by  Dr.  Rudolph  Gneist,  Pro- 
fessor of  Law  at  the  University  of  Berlin.  Translated  by  Phillip  A. 
Ashworth,  of  the  Inner  Temple,  Esq.,  Barrister-at-law.  Second  edi- 
tion revised  and  enlarged.  In  two  volumes.  London,  William  Clowes 
and  Sons,  Limited,  1889. 

WILLIAM  D.  GUTHRIE;  The  Fourteenth  Amendment  to  the 
Constitution  of  the  United  States  : 

Lectures  on  the  Fourteenth  Article  of  Amendment  to  the  Constitu- 
tion of  the  United  States  delivered  before  the  Dwight  Alumni  Associa- 
tion, New  York,  April-May,  1898.  By  William  D.  Guthrie,  of  the  New 
York  Bar.     Boston,  Little,  Brown  &  Company,  1898. 

WILLIAM  EDAVARD  HALL;  Hall's  International  Law. 
A  Treatise  on  International  Law  by  William  Edward  Hall,  M.  A. 
Fourth   edition.      Oxford,   at    the    Clarendon    Press,    London,    Henry 
Fi-owde,  Oxford,  University  Press  Warehouse,  Amen  Corner  and  Stev- 
ens &  Sons,  Limited,  1895. 

WILLIAM  EDWARD  HALL;  Hall's  Foreign  Jurisdiction  of 
the  British  Crown. 

A  Treatise  on  the  Foreign  Powers  and  Jurisdiction  of  the  British 
Crown  by  William  Edward  Hall,  M.  A.,  Barrister-at-law.  Oxford  at 
the  Clarendon  Press,  London:  Henry  Frowde  and  Stevens  &  Sous,  Lim- 
ited, 1894. 

HALLECK;  see  Sir  Sherston  Baker. 

ALEXANDER  HAMILTON;  see  Dawson,  J.  C.  Hamilton  and 
Lodge,  Editors  of  Federalist. 


TABLE  OF  AUTHORITIES.  XXXI 

JOHN  C.  HAMILTON;  The  Federalist. 
The  Federalist.  A  Commentary  on  the  Constitution  of  the  United 
States.  A  collection  of  essays  by  Alexander  Hamilton,  Jay  and  Madi- 
son. Also  the  Continentalist  and  other  papers,  by  Hamilton.  Edited 
by  John  C.  Hamilton,  Author  of  the  History  of  the  Republic  of  the 
United  States.     Philadelphia,  J.  B.  Lippincott  Company,  1888. 

SAMUEL  BANNISTER  HARDING;  Tue  Federal  Constitution 
IN  Massachusetts. 

Harvai-d  Historical  Studies,  II.  The  Contest  over  the  Ratification  of 
the  Federal  Constitution  in  the  State  of  Massachusetts,  by  Samuel  Ban- 
nister Harding,  A.  M. ;  sometime  Morgan  Fellow  in  Harvard  University; 
Assistant  Professor  of  History  in  Indiana  University.  New  York,  Lon- 
don and  Bombay,  Longmans,  Green  and  Co.,  1896. 

JOHN  H.  HASWELL;  see  Treaties  of  United  States. 

BINGER  HERMANN;  The  Louisiana  Purchase. 
The  Louisiana  Purchase  and  Our  Title  West  of  the  Rocky  Mountains, 
with  a  Review  of  Annexation  by  the  United  States,  by  Binger  Hermann, 
Commissioner  of  the  General  Laud  Office.     Washington,  Government 
Printing  Office,  1898. 

WILLIAM  HICKEY;  The  Constitution  of  the  United  States. 

Hickey's  Constitution  of  the  United  States  of  America,  with  an  alpha- 
betical analysis;  Proceedings  of  the  Contintental  Congress;  Non-Im- 
portation Agreement;  Address  to  the  Crown  and  People  of  Great  Brit- 
tain;  The  Declaration  of  Independence,  etc.,  etc.,  by  William  Hickey. 
New  and  enlarged  edition.  Revised  and  brought  down  to  the  4th  of 
March,  1877,  by  Alexander  Cunimings,  Counsellor  at  Law.  Baltimore, 
John  Murphy  &  Co. ,  for  the  benefit  of  the  heirs  of  William  Hickey,  1878. 

FREDERICK  W.  HOLLS;  The  Peace  Conference  at  The  Hague. 
The  Peace  Conference  at  The  Hague  and  its  Bearings  on  International 
Law  and  Policy  by  Frederick  W.  Holls,  D.  C,  L.,  a  member  of  the 
Conference  of  the  United  States  of  America.  New  York,  The  Macmil- 
lan  Company;  London,  Macmillan  &  Co.,  Ltd.,  1900. 

DAVID  FRANKLIN  HOUSTON;  A  Study  of  Nullification  in  South 

Carolina. 
Harvard  Historical  Studies,  III.  A  Critical  Study  of  Nullification  in 
South  Carolina  by  David  Franklin  Houston,  A.  M.,  Adjunct  Professor 
of  Political  Science  in  the  University  of  Texas;  sometime  Morgan  Fel- 
low of  Harvard  University.  Longmans,  Green  and  Co.,  New  York, 
London  and  Bombay,  1896. 

JOHN  C.  HURD;  The  Theory  of  our  National  Existence. 
The  Theory  of  our  National  Existence,  as  shown  by  the  action  of  the 
Government  of  the  United  States  since  1861.     John  C.  Hard,  LL.  D., 


XXxii  TABLE  OF  AUTHORITIES. 

author  of  "  The  Law  of  Freedom  and  Bondage  in  the  United  States." 
Boston,  Little,  Brown  &  Company,  1881. 

E.  P.  HURLBUT;  Essays  on  Human  Rights. 
Essays  on  Human  Rights  and  their  Political  Guaranties,  by  E.  P.  Hurl- 
but,  Counsellor  at  Law  in  the  City  of  New  York,  with  notes  by  George 
Combe.     Sixth  thousandth.     New  York,  Fowlers  and  Wells,  1850. 

INDIAN  LAWS;  United  States  Indian  Laws. 
Laws  of  the  United  States  relating  to  Indian  Affairs,  compiled  from 
the  Revised  Statutes  of  the  United  States  enacted  June  22,  1874,  and 
from  Statutes  at  Large  from  that  date  to  March  4,  1893;  also,  Special 
Acts  and  Resohitious  previous  to  the  enactment  of  the  Revised  Statutes, 
not  embraced  in  or  repealed  by  the  Revision;  also,  List  of  all  Ratified 
Treaties  and  Agreements  made  with  the  several  Indian  Tribes.  Third 
Edition.  Compiled  by  the  Indian  Bureau.  Washington,  Government 
Printing  Office,  1884. 

INDIAN  TREATIES;  Revision  of  Indian  Treaties,  1873. 
A  Compilation  of  all  the  Treaties  between  the  United  States  and  the 
Indian  Tribes  now  in  force  as  Laws.  Prepared  under  the  provisions  of 
the  act  of  Congress,  approved  March  3,  1873,  entitled  "An  Act  to  pro- 
vide for  the  preparation  and  presentation  to  Congress  of  the  Revision 
of  the  laws  of  the  United  States,  consolidating  the  Laws  relating  to  the 
Postroads,  and  a  Code  relating  to  Military  Offenses,  and  the  Revision  of 
Treaties  with  the  Indian  Tribes  now  in  force."  Washington,  Govern- 
ment Printing  Office,  1873. 

F.  J.  KIRCHNER;  L'Extradition. 
L'Extradition;  Recueil  Renfermant  in  extenso  tous  les  Traites  con- 
clus  jusqu'an  ler  Janvier,  1883.  entre  les  Nations  Civilisees,  et  donnant 
la  solution  precise  des  difficultes  qui  peuvent  surgir  dans  leur  applica- 
tion; avec  une  preface  de  M.  Georges  Lachaud,  avocat  a  la  Cour  D'ap- 
pel  des  Paris;  Publie  sous  les  Auspices  de  M.  C.  E.  Howard  Vincent, 
Directeur  des  Affaires  Criniinelles  de  la  Police  Metropolitaine  de  Lon- 
dres;  membre  de  la  Faculte  de  Droit  et  de  la  Societe  Generale  des 
Prisons  de  Paris;  avec  le  Concours  Beinveillant  du  Corps  Diplomatique, 
par  F.  J.  Kirchner,  attache  a  la  Direction  des  Affaires  Criminelles. 
London;  Stevens  and  Sons,  Chancery  Lane,  1883. 

LINDLEY  MILLER  KEASBEY;  The  Nicaragua  Canal  and  the 
Monroe  Doctrine. 
A  Political  History  of  Isthmus  Transit,  with  special  reference  to  the 
Nicaragua  Canal  Project  and  the  Attitude  of  the  United  States  Govern- 
ment thereto,  by  Lindley  Miller  Keasbey,  Ph.  D.,  R.  P.  D.,  Associate 
Professor  of  Political  Science,  Bryn  Mawr  College.  G.  P.  Putnam's 
Sons,  New  York  and  London,  1896. 


TABLE  OF  AUTHORITIES.  XXXIU 

JUDSON  S.  LANDON;  The  Constitutional  History  and  Govern- 
ment OF  THE  United  States. 
The  Constitutional  Plistory  and  Government  of  the  United  States  by 
Judson  S.   Landon,  LL.  D.,  Revised  edition.     Boston  and  Nev?  York, 
Houghton,  Miflfliu  &  Company,  The  Riverside  Press,  Cambridge,  1900. 

T.  J.  LAWRENCE;  The  Principles  op  International  Law. 
The  principles  of  International  Lav?  by  T.  J.  Lawrence,  M.  A.,  LL.  D., 
Rector  of  Girton,  and  Lecturer  in  Downing  College,  Cambridge,  England: 
Associate  of  the  Institute  of  International  Law,  etc.  Boston,  U.  S.  A. 
D.  C.  Heath  &  Co.,  1895. 

WILLIAM  LAWRENCE;  Law  of  Claims  against  Governments. 
The  Law  of  Claims  against  Governments  including  the  mode  of  ad- 
justing them  and  the  Procedure  adopted  in  their  investigation.  Cred- 
ited to  Hon.  William  Lawrence,  Comptroller  of  the  Treasury.  Pub- 
lished by  order  of  the  Congress  of  the  United  States  of  America,  Wash- 
ington Government  Printing  Office,  1875. 

WILLIAM  BEACH  LAWRENCE;  Lawrence's  Wheaton  on  Intek- 
national  Law. 
Elements  of  International  Law.  By  Henry  Wheaton,  LL.  D.,  Minister 
of  the  United  States  at  the  Court  of  Prussia;  Corresponding  Member  of 
the  Academy  of  Moral  and  Political  Sciences  in  the  Institute  of  Fiance, 
Honorary  Member  of  the  Royal  Academy  of  Sciences  at  Berlin,  etc.,  Sec- 
ond annotated  edition  by  William  Beach  Lawrence,  author  of  "Visita- 
tion and  Search,"  etc.  Boston,  Little,  Brown  &  Company;  London, 
Sampson  Low,  Son  and  Company,  1863. 

HENRY  CABOT  LODGE;  The  Federalist. 

The  Federalist,  A  Commentary  on  The  Constitution  of  the  United 
States,  being  a  Collection  of  Essays  written  in  support  of  the  Constitu- 
tion agreed  upon  September  17,  1787,  by  The  Federal  Convention.  Re- 
printed from  the  original  text  of  Alexander  Hamilton,  John  Jay,  and 
James  Madison.  Edited  by  Henry  Cabot  Lodge,  Author  of  "  Life  and 
Letters  of  George  Cabot,"  "A  short  History  of  the  English  Colonies  in 
America,"  "Alexander  Hamilton,"  and  "Daniel  Webster"  (in  "Amer- 
ican Statesmen"  Series),  and  "Studies  in  History."  New  I'ork  and 
London,  G.  P.  Putnam's  Sons,  1894. 

JOHN  BACH  McMASTER;  A  History  of  the  People  of  the  Uni- 
ted States. 

A  History  of  the  People  of  the  United  States,  from  the  Revolution  to 
the  Civil  War.  By  John  Bac.li  McM:ister.  In  five  volumes.  Volume  I, 
New  York,  D,  Appleton  and  Company,  1893.  Other  volumes  issued  sub- 
seqently. 

JOHN  BACH  McMASTER;  Monroe  Doctrine. 
The  Origin,  Meaning  and  Application  of  the  Monroe  Doctrine  by  Pro- 
fessor John  Bach  McMaster  and  Henry  Altemus.     Philadelphia,  1896. 
0 


XXXIV  TABLE  OF  AUTHORITIES. 

McM ASTER  AND  STONE;  Pennsylvania  and  the  Federal  Con- 
stitution, 1787-1788. 

Pennsylvania  and  the  Federal  Constitution  1787-1788.  Edited  by 
Jolm  Bach  McMaster  and  Frederick  D.  Stuue.  Published  for  the  sub' 
scribers  by  The  Historical  Society  of  Pennsylvania,  1888. 

WILLIAM  MACDONALD;  Select  Charters  Illustrative  op 
American  History,  1606-1775. 

Select  Charters  and  Other  Documents  illustrative  of  American  His- 
tory 1606-1775.  Edited  with  notes  by  William  Macdonald,  Professor  of 
History  and  Political  Science  in  Bowdoin  College.  Editor  of  "  Select 
Documents  Illustrative  of  the  History  of  the  United  States,  1776-1861.'' 
New  York,  The  Macmilhm  Company,  1899. 

JAMES  MADISON;  Madison  Papers. 
The  Papers  of  James  Madison,  Purchased  by  Order  of  Congress,  be- 
ing his  CorresjJondence  and  Reports  of  Debates  during  the  Congress  of 
the  Confederation  and  his  Report  of  Debates  in  the  Federal  Convention; 
now  published  from  the  original  manuscripts,  deposited  in  the  Depart- 
ment of  State,  by  direction  of  the  Joint  Library  Committee  of  Congress 
under  the  superintendence  of  Henry  D.  Gilpin.  Washington,  Langtree 
&  O'SuUivan,  1840.     (In  three  volumes.) 

CHARLES  E.  MAGOON;  Congressional  Document. 
Senate  Document,  No.  234,  LVI  Congress;  first  session;  Report  on 
legal  status  of  the  territory  and  inhabitants  of  the  islands  acquired  by 
the  United  States  during  the  war  with  Spain,  considered  with  reference 
to  territorial  boundaries,  the  Constitution  and  laws  of  the  United  States, 
by  Charles  E.  Magoon,  Law  Office,  Division  of  Insular  Affairs,  War  De- 
partment, submitted  to  Secretary  of  War  Elihu  Root,  February  12,  1900, 
presented  to  the  Senate  by  Cushman  K.  Davis,  chairman  of  the  Com- 
mtttee  on  Foreign  Relations,  March  20,  1900. 

SIR  HENRY  SUMNER  MAINE;  Popular  Government. 
Popular   Government,   Four   Essays,   by  Sir  Henry  Sumner  Maine, 
K.  C.  S.  L,  LL.  D.,  F.  R.  S.  Foreign  Associate  of  the  Institute  of  France, 
author  of  "  Ancient  Law."     London,  John  Murray,  1885. 

JOHN  MARSHALL;  On  the  Federal  Constitution. 
The  Writings  of  John  Mnrshall  late  Chief  Justice  of  the  United  States 
upon  The  Federal  Constitution.     Boston,  James  Munroe  &  Company, 

1839. 

WILLIAM  M.  MEIGS;  The  Growth  of  the  Constitution. 
The  Growth  of  the  Constitution  in  the  Federal  Convention  of  1787. 
An  effort  to  trace  the  origin  and  development  of  eacli  separate  clause 
from  its  suggestion  in  that  body  to  the  form  finally  approved,  contain- 
ing also  a  fac-simile  of  a  heretofore  unpublished  manuscript  of  the  first 
draft  of  the  instrument  made  for  use  in  the  committee  of  detail,  by 


TABLE  OF  AUTHORITIES.  XXXV 

William  M.  Meigs,  author  of  "The  Life  of  Charles  Jared  IngersoU." 
Second  edition.  Philadelphia  and  London,  J.  B.  Lippincott  Com- 
pany, 1900. 

SAMUEL  FREEMAN  MILLER;  Miller's  Lectures  on  the  United 
States  Constitution. 
Lectures  on  the  Constitution  of  The  United  States  by  Samuel  Free- 
man Miller,  LL.  D.,  late  an  Associate  Justice  of  the  Supreme  Court  of 
the  United  States.  New  York  and  Albany,  Banks  and  Brothers,  1891. 
With  notes  by  J.  C.  Bancroft  Davis  and  Gheradi  Davis. 

LIFE  OF  JAMES  MONROE;  Daniel  C.  Gilman. 

American  Statesman  Series.     James  Monroe  in  his  relations  to  the 

Public  Service  during  half  a  Century,  1776-1826,  by  Daniel  C.  Gilman, 

President  of  the  Johns  Hopkins  University,  Baltimore.     Ninth  edition. 

Boston  and  New  York,  Houghton,  Mififlin  &  Co.,  Riverside  Press,  1888. 

JOHN  BASSETT  MOORE;  International  Arbitrations. 
History  and  Digest  of  the  International  Arbitrations  to  which  the 
United  States  has  been  a  Party,  together  with  Appendices  containing 
the  Treaties  relating  to  such  Arbitrations,  and  Historical  and  Legal 
Notes  on  other  Internatiojial  Arbitrations  Ancient  and  Modern,  and  on 
the  Domestic  Commissions  of  the  United  States  for  the  Adjustment  of 
International  Claims.  By  John  Bassett  Moore,  Hamilton  Fish  Professor 
of  International  Law  and  Diplomacy,  Columbia  University,  New  York; 
Associate  of  the  Institute  of  International  Law;  sometime  Assistant 
Secretary  of  State  of  the  United  States;  author  of  a  work  on  Extradi- 
tion and  Interstate  Rendition,  of  American  notes  on  the  Conflict  of 
Laws,  etc.  In  six  volumes.  Washington,  Government  Printing  Office, 
1898. 

JOHN  BASSETT  MOORE;  Moore  on  Extradition;  Extradition 
AND  Interstate  Rendition. 
A  Treatise  on  Extradition  and  Interstate  Rendition.  With  Appen- 
dices containing  the  Treaties  and  Statutes  relating  to  Extradition;  the 
Treaties  relating  to  the  Desertion  of  Seamen;  and  the  Statutes,  Rules 
of  Practice,  and  Forms,  in  force  in  the  several  States  and  Territories, 
relating  to  Interstate  Rendition.  By  John  Bassett  Moore,  Third  Assis- 
tant Secretary  of  State  of  the  United  States;  Author  of  a  work  on 
"Extra  Territorial  Crime,"  of  a  report  on  Extradition  to  the  Interna- 
tional American  Conference,  etc.  In  two  volumes.  Boston,  The  Bos- 
ton Book  Company,  1891. 

JOSEPH  WEST  MOORE;  The  American  Congress. 
The  American   Congress.     A  History  of   National    Legislation   and 
Political  Events,  1774-1895,  by  Joseph  West  Moore,  New  York,  Harper 
&  Brothers,  1895. 


XXXVi  TABLE  OF  AUTHORITIES. 

JOHN  G.  NICOLAY  AND  JOHN  HAY;  Abraham  Lincoln.     A 

HisrouY. 
Abrahnm  Lincoln,  a  History.     Tea  volumes.     By  John  G.  Nicolay 
and  John  Hay.     New  York  Century  Co.,  1890. 

SIR  ROBERT  PHILLIMOKE;  Tjiillimore's  International  Law. 
Commentaries  upon  InteruaLional  Law.  By  the  Late  Sir  Robert 
Phillimore,  Bart.,  D.  C.  L.,  Member  of  Her  Majesty's  Most  Honourable 
Privy  Council,  Membre  Correspondent  de  L'Institut  de  France,  and  some- 
time  Judge  of  the  High  Court  of  Admiralty.  In  four  volumes.  Third 
edition.  Butterwortlis,  London;  Hodges,  Foster  &  Co.,  Dublin;  vol- 
ume I,  1879;  volume  II,  1882,  volume  III,  1885. 

SIR  ROBERT  PHILLIMORE;  Phillimore's  International  Law. 

Commentaries  upon  International  Law.  Private  International  Law 
or  Comity,  by  the  Late  Sir  Robert  Phillimore,  Bart.,  D.  C.  L.  Member 
of  Her  Majesty's  Most  Honourable  Privy  Council,  and  Judge  of  the  High 
Court  of  Admiralty.  In  four  volumes.  Vol.  IV.  Tliird  edition.  Edi- 
ted by  the  author's  son,  Sir  Walter  G.  F.  Phillimore,  Bart.,  D.  C.  L.,  of 
All  Souls  College,  Oxford,  and  the  Middle  Temple,  Barrister-at-Law;  and 
Reginald  James  Mure,  M.  A.,  of  Ch.  Ch.  Oxford,  and  Lincoln's  Inn, 
Barrister-at-Law.  Butter  worths,  London;  Hodges,  Figgis  &  Co.,  Dub- 
lin, 1889. 

JOHN  NORTON  POMEROY;  Pomeroy's  Coxstitutional  Law. 

An  Introduction  to  the  Constitutional  Law  of  the  United  States. 
Especially  designed  for  Students,  General  and  Professional,  by  John 
Norton  Pomeroy,  LL.  D.  Author  of  "  Lectures  on  International  Law 
in  the  Time  of  Peace."  Ninth  edition.  Revised  and  enlarged,  by 
Edmund  H.  Benaett,  LL.  D.  Dean  of  the  Boston  University  Law  School. 
Boston  and  New  York,  Houghton,  Mifflin  and  Company,  The  Riverside 
Press,  Cambridge,  1886. 

JOHN  NORTON  POMEROY;  International  Law. 
Lectures  on  International  Law  in  Time  of  Peace.  By  John  Norton 
Pomeroy,  author  of  "  An  Introduction  to  the  Constitutional  Law  of  the 
L'nited  States,"  "An  Introduction  to  Municipal  Law,"  etc.  Edited  by 
Theodore  Salisbury  Woolsey,  Professor  of  International  Law  in  the  Yale 
Law  School.  Boston  and  New  York,  Houghton,  Mifflin  &  Company, 
The  Riverside  Pi'ess,  Cambridge,  1886. 

CARMAN  F.  RANDOLPH;  Law  and  Policy  of  Annexation. 
The  Law  and  Policy  of  Annexation,  with  special  reference  to  the 
Philippines,  together  with  observations  on  the  status  of  Cuba.  By 
Carman  F.  Randolph  of  the  New  York  Bar,  author  of  "  The  Law  of 
Eminent  Domain."  Longmans,  Green  and  Co.,  91  and  93  Fifth  Avenue, 
New  York;  London  and  Bombay,  1901. 

MATTHEW  G.  REYNOLDS;  Spanish  and  Mexican  Land  Laws. 
Spanish  and  Mexican  Land  Laws;  New  Spain  and  Mexico  by  Matthew 


TABLE  OF  AUTHORITIES.  XXXVII 

G.  Reynolds,  United  States  Attorney  for  tlie  Court  of  Private  Land 
Claims.  (Containing  also  Kules  of  Court  of  Private  Land  Claims.) 
St.  Louis,  Mo.,  1895. 

RHODES;  History  of  the  United  States. 
History  of  the  United  States  from  the  Compromise  of  1850,  by  James 
Ford  Rhodes.     Four  volumes.     New  York,  Har^jer  Brothers,  1893. 

WILLIAM  C.  RIVES;  Life  and  Times  of  James  Madison. 
History  of  the  Life  and  Times   of  James   Madison,   by  William  C. 
Rives.     Two  volumes.     Boston,  Little,  Brown  &  Co.,  1859. 

ALPHONSE  RIVIER:  Principes  du  Droit  des  Gens. 
Principes  du  Droit  des  Gens  par  Alphonse  Rivier,  Consul  General  de 
la  Confederation  Suisse.  Professeur  a  L'Universite  de  Boutelles,  Pro- 
fesseiir  Honoraire  a  L'Universite  de  Lausanne.  Duex  tomes.  Paris 
Litrairie  Nouvelle  de  Droit  et  de  Jurisprudence.  Arthur  Rousseau, 
Editeur,  1896. 

THEODORE  ROOSEVELT;  The  Winning  of  the  West. 

The  Winning  of  the  West,  by  Theodore  Roosevelt,  author  of  "  Naval 
War  of  1812,"  "Life  of  Thomas  Hart  Benton,"  "Life  of  Governor 
Morris,"  "  Hunting  Trijis  of  a  Ranchman,"  "  Ranch  Life  and  the  Hunt- 
ing Trail,"  "Essays  on  Practical  Politics,"  etc.  Four  volumes.  Vol- 
umes I  and  11,  1881',  From  the  Alleganies  to  the  Mississippi;  volume 
III,  1894,  The  Founding  of  the  Trans-Alleghany  Commonwealth;  vol- 
ume IV,  1896,  Louisiana  and  the  Northwest.  C.  P.  Putnam's  Sons, 
New  York  and  London. 

SAMUEL  T.  SPEAR;  Spear  on  the  Law  of  Extradition. 
The  Law  of  Extradition,  International  and  Interstate  with  an  Ap- 
pendix, containing  the  Extradition  Treaties  and  Laws  of  the  United 
States,  the  Extradition  Laws  of  the  States,  several  sections  of  the  Eng- 
lish Extradition  Act  of  1870,  and  the  Opinion  of  Governor  CuUom.  By 
Samuel  T.  Spear,  author  of  "  The  Law  of  the  Federal  Judiciary;  "  "  The 
Constitutionality  of  the  Legal  Tender  Acts,"  etc.  Second  edition. 
Albany,  Weed,  Parsons  &  Co.,  1884. 

JOSEPH  STORY;  Commentaries  on  the  Constitution. 
Commentaries  on  the  Constitution  of  the  United  States;  with  a  Pre- 
liminary Review  of  the  Constitutional  History  of  the  Colonies  and 
States  before  the  adoption  of  the  Constitution.  By  Joesph  Story,  L.L.  D. 
In  two  volumes.  Fifth  edition  by  Melville  M.  Bigelow,  Ph.  D.  Boston, 
Little,  Brown  &  Co.,  1891. 

HANNIS  TAYLOR;  The  Origin  and  Growth  of  the  English  Con- 
stitution. 
The  Origin  and  Growth  of  the  English  Constitution.     An  Historical 
Treatise  in  which  is  ^rawn  out,  by  the  light  of  the  most  recent  re- 


XXXVm  TABLE  OF  AUTHORITIES. 

searches,  the  gradual  development  of  the  English  Constitutional  sys- 
tem, and  the  growth  out  of  that  system  of  the  Federal  Republic  of  the 
United  States.  By  Hannis  Taylor.  In  two  parts.  Part  I.  The  Mak- 
ing of  the  Constitution.  Part  II.  Boston  and  New  York,  Houghton, 
Mifflin  &  Company;  Loudon,  Sampson,  Low,  Marston,  Searle  &  Kiving- 
ston;  The  Riverside  Press,  Cambridge,  1889. 

R.  W.  THOMPSON;  Histoky  of  the  Tariff. 
The  History  of  Protective  Tariff  Laws  by  R.  W.  Thompson,  Ex-Sec- 
cretary  of  the  U.  S.  Navy.     Third  edition.      Chicago,  R.  S.  Peale  & 
Co.,  1888, 

C.  G.  TIEDEMAN;  The  Unwkitten  Constitutiox  of  the  United 

States. 
The  Unwritten  Constitution  of  the  United  States,  a  Philosophical 
Inquiry  into  the  Fundamentals  of  American  Constitutional  Law,  by 
Christopher  G.  Tiedeman,  A.  M.,  LL.  B.,  Professor  of  Law  in  the  Uni- 
versity of  Missouri,  author  of  treatises  on  "The  Limitation  of  Police 
Power,"  "The  Law  of  Real  Property,"  and  "  Law  of  Commercial  Pa- 
per."    C.  P.  Putnam's  Sons,  New  York  and  London,  1890. 

ALPHEUS  TODD;  Parliamentary  Government  in  the  British 

Colonies. 
Parliamentary  Government  in  the   British   Colonies.      By  Alpheus 
Todd,  Librariau  of  Parliament,  Canada;  author  of  "  Parliamentary  Gov- 
ernment in  England,"  etc.     Boston,  Little,  Brown  &  Company.     1880. 

TREATIES;  Treaties  and  Conventions  Between  United  States 
AND  Other  Powers.  1TT6-1887. 
Treaties  and  Conventions  concluded  between  the  United  States  of 
America  and  other  Powers,  since  July  4,  1776,  complied  by  John  H. 
Haswell,  containing  notes,  with  References  to  negotiations  preceding 
the  several  treaties,  to  the  executive,  legislative,' or  judicial  construc- 
tion of  tJiem,  and  to  the  causes  of  the  abrogation  of  some  of  them;  a 
chronological  list  of  treaties;  and  an  analytical  index.  "Washington, 
Government  Printing  Office,  1889. 

TREATIES  IN  FORCE,  1899— Bryan. 
Compilation  of  Treaties  in  Force.     Prepared  under  Act  of  July  7, 1898, 
by  Henry  L.  Bryan.     Washington,  Government  Printing  Office,  1899. 

See  also  Indian  Treaties. 

GEORGE  F.  TUCKER;  The  Monroe  Doctrine. 
The  Monroe  Doctrine.     A  Concise  History  of  its  Origin  and  Growth, 
by  George  F.  Tucker,  of  the  Boston  Bar  (author  of  "  Manual  of  Wills"). 
Boston,  George  B.  Reed,  1885. 

JOHN  RANDOLPH  TUCKER;  The  Constitution  of  the  United 

States. 
The  Constitution  of  the  United  States;  A  Central  Discussion  of  its 


TABLE  OF  AUTHORITIES.  XXXIX 

Genesis,  Development,  and  Interpretation,  by  John  Randolph  Tucker, 
LL.  D.,  Late  Professor  of  Constitutional  and  International  Law  and 
Equity,  Washington  and  Lee  University.  Edited  by  lion.  St.  George 
Tucker,  Professor  of  Constitutional  and  International  Law  and  Equity 
in  Washington  and  Lee  University.  Four  volumes.  Chicago,  Callaghan 
&  Co.,  1899. 

ST.  GEORGE  TUCKER;  Tucker's  Blackstone. 

Blackstone's  Commentaries  with  notes  of  Reference  to  the  Constitu- 
tion and  Laws  of  the  Federal  Government  of  the  United  States;  and  of 
the  Commonwealth  of  Virginia.  In  five  volumes.  With  an  appendix 
to  each  volume,  constituting  short  tracts  upon  such  subjects  as  ap- 
peared necessary  to  form  a  connected  view  of  the  laws  of  Virginia,  as 
a  member  of  the  Federal  Union.  By  St.  George  Tucker,  Professor  of 
Law  in  the  University  of  William  and  Mary,  and  one  of  the  Judges  of 
the  General  Court  in  Virginia.  Philadelphia,  William  Young  Birch, 
and  Abraham  Small,  1803. 

DR.  H.  VON   HOLST;  Constitutioxal  History  of  the  United 

States,  1750-1861. 

The  Constitutional  and  Political  History  of  the  United  States,  by 

Dr.  H.  Von  Hoist,  Professor  of  the  University  of  Freiburg.     Translated 

from  the  German  by  John  J.  Lalor  and  Alfred  B.  Mason.     1750-1833. 

State  Sovereignty  and  Slavery.     Chicago,  Callaghan  and  Company,  1876. 

DR.  H.  VON.  HOLST;  Constitutional  Law  of  the  United  States. 
The  Constitutional  Law  of  the  United  States  of  America,  by  Dr.  H. 
Von  Hoist,  Privy  Councilor  and  Professor  in  the  University  of  Freiburg. 
Authorized  edition.  Translated  by  Alfred  Bishop  Mason.  Chicago, 
Callaghan  &  Co.,  1887. 

THOMAS  ALFRED  WALKER;  A  History  of  The  Law  of  Nations. 
A  History  of  the  Law  of  Nations  by  Thomas  Alfred  Walker,  M.  A., 
LL.  D.,  Fellow  and  Tutor  of  and  Lecturer  in  History  in  Peterhouse, 
Cambridge.  Vol.  I.  From  the  Earliest  Times  to  the  Peace  of  West- 
phalia, 1648.     Cambridge,  at  The  University  Press,  1899. 

ROBERT  WARD;  Ward's  Law  of  Nations. 

An  Inquiry  into  the  Foundation  and  History  of  the  Law  of  Nations 

in  Europe,  from  the  time  of  the  Greeks  and  Romans,  to  the  Age  of  Gro- 

tius.     By  Robert  Ward,  of  the  Inner  Temple,  Esq.,  Barrister-at-Law.     In 

two  volumes.     Vol.  II.     London.     A.  Strahan  and  W.  Woodfall,  1795. 

DANIEL  WEBSTER;  The  Works  of  Daniel  Webster, 
In  six  volumes.     Twentieth  edition.     Boston,  Little,  Brown  &  Co., 
1890.     First  volume  contains  Biographical  Memoir  of  the  Public  Life 
of  Daniel  Webster,  by  Edward  Everett. 

FRANCIS  WHARTON;  International  Law  Digest. 
A  Digest  of  The  International  Law  of  the  United  States,  taken  from 


Xl  TABLE  OF  AUTHORITIES. 

Documents  issued  by  Presidents  and  Secretaries  of  State,  and  from 
Decisions  of  Federal  Courts  and  Opinions  of  Attorneys-General.  Edited 
by  Francis  Wharton,  LL.  D.,  author  of  a  treatise  on  Coutlict  of  Laws, 
and  of  Commentaries  on  American  Law.  In  three  volumes  (second 
edition).     Washington,  Government  Printing  Office,  1887. 

HENRY  WHEATOlSr;  Whe axon's  International  Law.    See  Boyd, 
Dana  and  Lawkence. 

HEISTRY  WHEATOX;  History  of  the  Law  of  Nations. 
History  of  the  Law  of  Nations  in  Europe  and  America;  from  tlie 
earliest  times  to  the  Treaty  of  Washington,  1842.  By  Henry  Wheaton, 
LL.  D.,  Minister  of  the  United  States  at  the  Court  of  Berlin,  Corre- 
sponding Member  of  the  Academy  of  Moral  and  Political  Sciences  in  the 
Institute  of  France.  New  York,  Gould,  Banks  &  Co.,  Wm.  &  A. 
Gould  &  Co.,  Albany;  and  Andrew  Milliken,  Dublin,  Ireland,  1845. 

HENRY  WILSON;  Rise  and  Fall  of  the  Slave  Power  in  America. 
History  of  the  Rise  and  Fall  of  the  Slave  Power  in  America,  by  Henry 
Wilson,    in   three   volumes.    Ninth    edition.     Boston   and   New   York, 
Houghton,  Mifflin  &  Company,  The  Riverside  Press,  Cambridge. 

THEODORE  DWIGHT  WOOLSEY;  International  Law. 
Introduction  to  the  study  of  International  Law  designed  as  an  aid  in 
teaching  and  in  historical  studies  by  Theodore  Dwight  Woolsey.    Sixth 
edition,  revised  and  enlarged  by  Theodore  Salisbury  Woolsey.     New 
York,  Charles  Scribner's  Sons,  1891. 

THEODORE  SALISBURY  WOOLSEY;  America's  Foreign  Policy. 

America's  Foreign  Policy;  Essays  and  Addresses  by  Theodore  Salis- 
bury Woolsey,  M.  A.,  Professor  of  International  Law  in  the  Law  School 
of  Yale  University.     New  York,  The  Century  Co.,  1898. 

HEZEKIAH  BUTTERWORTH. 
South  America,  a  Political  History  of  the  Struggle  for  Liberty  in  the 
American  Republics  and  Cuba,   by  Hezekiah  Butterworth,  author  of 
Over  the  Andes,  Zizzag  Journeys.     New  York,  Doubleday  &  McClure 
Co.,  1898. 

JAMES  MORTON  CALLAHAN. 
Agreement  of  1817.     Reduction  of  naval  forces  upon  the  lakes.     By 
James  Morton  Callahan,  Ph.  D.,  sometime  Assistant  and  Fellow  in  His- 
tory, Johns  Hopkins  University.     Series  XVI  of  Johns  Hopkins  Uni- 
vei'sity  Studies  in  historical  and  political  science,  1898. 

CONSTITUTIONAL  MANUAL. 

The  Conventional  Manual  of  the  Sixth  New  York  State  Constitutional 
Convention,  1894.  Foreign  Constitutions,  comprising  The  Constitutions 
of  Argentine,  Belgium,  Brazil  (Empire  and  Republic),  Colombia,  Ecua- 
dor, France,  Germany,  Honduras,  Japan,  Mexico,  Prussia,  Switzerland 


TABLE  OF  AUTHOIIITIES.  xH 

and  Venezuela.  Prepared  in  pnrsuauce  of  chapter  8,  of  Laws  of  1893, 
and  chapter  228  of  Laws  of  189-1.  Under  the  direction  of  John  Pa-lmer, 
Secretary  of  State,  James  A.  Roberts,  Comptroller,  Theo.  E.  Hancock, 
Attornoy-Greneral.  By  George  A.  Glynn,  Syracuse,  Compiler.  Part  2, 
vol.  3,  Albany,  The  Argus  Company,  Printers.  1894, 

PAUL  LEICESTER  FORD;  The  Federalist. 
The  Federalist,  a  Commentary  on  the  Constitution  of  the  United  States, 
by  Alexander  Hamilton,  James  Madison,  and  John  Jay.  Edited,  with 
notes,  illustrative  documents,  and  a  copious  index  by  Paul  Leicester 
Ford,  Editor  of  Pamphlets  and  Essay  on  the  Constitution.  New  York, 
Henry  Holl  and  Co.,  1898. 

ALBERT  BUSHNELL  HART;    The  Foundations    of    American 

FoKEiGN  Policy. 
With  a  Woiking  Bibliography.     By  Albert  Bushnell  Hart,  Professor 
of  History  in  Harvard  University.   The  Macmillan  Companj^  1901. 

JOSEPH  ROGERS  HEROD;  Favored  Nation  Treatment. 

An  Analysis  of  the  Most  Favored  Nation  Clause,  with  Commentaries 
on  its  uses  in  Treaties  of  Commerce  and  Navigation,  by  Joseph  Rogers 
Herod,  M.  A.,  formerly  Secretary  of  Legation  and  Charge  d' Affaires  of 
the  United  States  to  Japan.  Banks  Law  Publishing  Co.,  New  York, 
1901. 

JOHN  H.  LATANE. 
The  Albert  Shaw  Lectures  on  Diplomatic  History,   1899.     The  dip- 
lomatic relations  of  the  United  States  and  Spanish  America,  by  John  H. 
Latane,  Ph.  D.,  Professor  of  History  in  Randolph-Macon  Woman's  Col- 
lege.    Baltimore,  The  Johns  Hopkins  Press,  1900. 

WILLIAM  II.  MICHAELS. 
History  of  the  Department  of  State  of  the  United  States.     Its  forma- 
tion and  duties,  together  with  biographies  of  its  present  officers  and 
secretaries   from   the   beginning.      Washington,   Government  Printing 
Office,  1901. 

E.  PARMALEE  PRENTICE  AND  JOHN  G.  EGAN. 
The  commerce  clause  of  the  Federal   Constitution,  by  E.  Parmalee 
Prentice  and  John  G.  Egan  of  Chicago.     Chicago,  Callaghan  and  Com- 
pany, 1898. 

FRANCIS  NEWTON  THORPE. 
The  constitutional  history  of  the  United  States.     By  Francis  Newton 
Thorpe.     In  three  volumes,  1765-1895.      Chicago,   Callaghan  &  Com- 
pany, 1901. 

SIDNEY  WEBSTER;  Two  Treaties  of  Paris. 
Two  Treaties  of  Paris  and  the  Supreme  Court,  by  Sidney  Webster. 
New  York  and  London,  Harper  &  Bros.,  1901. 


TABLE  OF  CASES. 


Page 

Abbngnnto,  New  Orleans  vs. 
See  New  Orleans  vs.  Abbag- 
nato. 

Ableniau  vs.  Booth.  U.  S. 
Sup.  Ct.  1858;  21  How.  506, 
Taney,  Ch.  J.,  Vol.  I,       535, 542 

Abra  La.     See  La  Abra. 

Adams  vs.  Akerlund.  Sup.  Ct. 
Ills.  1897;  1(58  Ills.  Rep.  632, 
McGbuder,  J.,  Vol.  II.,  38 

Adams  vs.  Baucrot't.  U.  S. 
Cir.  Ct.  1838,  Mass;  3  Sum- 
ner, 384,  Stoky,  J.,  Vol.  I.,     547 

Adams  vs.  United  States.  See 
Brig  William,  The. 

Addison  vs.  New  Orleans  Sav- 
ings Bank.  Sup.  Ct. 
Louis'a  1840;  15  La.  Ann.  O. 
S.  527,  Vol.  II,  54 

Adriance  vs.  Lagrave.  K  Y. 
Ct.  of  App.  1874;  59  N.  Y. 
110,  Chukch,  Ch.  J.;  N. 
Y.  Sup.  Ct.  Gen'l  Term  1874, 
1  Him,  689,  Daniels,  J., 
Vol.  II,  271,  273 

Adventure  and  Cargo,  The. 
U.  S.  Cir.  Ct.  Va.  1812;  1 
Brock.  235,  Marshall,  Ch. 
J.,  Vol.  I,  548 

Ah  Chong,  In  re.  U.  S.  Cir. 
Ct.  Cal.  1880;  6  Sawyer,  451, 
Sawyer,  J.,  Vol.  II,  28 

Ah  Fawn,  United  States  vs. 
See  United  States  vs.  Ah 
Faion. 

Ah  Fong,  In  re.  U.  S.  Cir.  Ct. 
Cal.  1874;  3  Sawyer,  144, 
Field,  J.,  Vol.  II,  28 

Ah  Kee,  la  re.  U.  S.  Dist. 
Ct.  S.  D.  N.  Y.  1884;  22 
Blatcliford,  520,  Brown,  J., 
Vol.  II,  116 

Ah  Lung,  In  re.  U.  S.  Cir.  Ct. 
Cal.  1883;  18  Fed.  Rep.  28; 
9  Sawyer,  306,  Field,  J., 
Vol.  II,  93,  116 

Ah  Ping,  In  re.  U.  S.  Cir.  Ct. 
Cal.  1885;  23  Fed.  Rep.  329, 
Sawyer,  J.,  Vol.  II,         101,  116 


Page 

Ah  Quan,  In  re.  U.  S.  Cir.  Ct. 
Cal.  1884;  10  Sawyer,  222, 
Sawy'ek,  J.,  Vol.11,  116 

Ah  Yup,  In  re.  U.  S.  Cir.  Ct. 
Cal.  1878;  5  Sawyer,  155, 
Vol.  II,  111 

Akerlund,  Adams  vs.  See 
Adams  vs.  Akerlund. 

Alabama  Claims  Cases.  See 
Badiman  vs.  Lawson ;  Great 
Western  Ins.  Co.  vs.  United 
States  ;  Phelps  vs.  McDonald. 

Alameda  vs.  Neal.  U.  S.  Cir. 
Ct.  Cal.  1887;  32  Fed.  Rep. 
331,  Field,  J.,  Vol.  I,  548 

Alaska  Church  Case.  See  Call- 
sen  vs.  Hope. 

Alaska  Packers^  Assn.,  United 
States  vs.  See  United  States 
vs.  Alaska  Packers''  Assn. 

Alaska  Slavery  Case.  See  Sah 
Quah\<i  Case. 

Albany  County  Ins.  Co.,  Whiton 
vs.  See  Whiton  vs.  Albany 
County  Ins.  Co. 

Alberty  vs.  United  States. 
U.  S.  Sup.  Ct.  1896;  162  U.  S. 
499,  Brown,  J.,  Vol.  II,  230 

Aldrich,  Wait-pe-man-qua  vs. 
See  Wau-pe-man-qua  vs.  Al- 
drich. 

AUxander,  Bunlopys.  See  Dun- 
lop  vs.  Alexander. 

Alexander  vs.  Roulet.     IT.  S. 
Sup.    Ct.    1871;  13    Wallace, 
386,  Davis,  J.,  Vol.  I,  538, 550, 553 
Vol.  II,  165 

Alexandroff,  United  States  ex 
rel.  vs.  Motherwell.  See 
United  States  ex  rel.  Alexan- 
droff vs.  Mothenvell. 

Ailing  vs.  United  States. 
IT.  S.  Sup.  Ct.  1885;  114  U.S. 
562,    Miller,    J.,    Vol.   II, 

290,  295 

Almy  vs.    California.    U.   S. 
Sup.    Ct.    1860;   24   Howard, 
169,  Taney,  Ch.  J.,  Vol.  I,    54S 
574,  575 

xliii 


xliv 


TABLE   OF   OASES. 


Page 


Alter^s  Appeal.  Pcnna.  Sup. 
Ct.  1871;  07  Peim.  St.  o41, 
AUNEW,  J.,  Vol.  I, 

Am.  Bap.  Mis.-i.  U)ilo)i,  Turner 
vs.  See  Turner  vs.  Am.  Bap- 
tist M^s.'i.   Union. 

Ambrose  Lisjlit,  The.  Dist.  Ct. 
S.  D.  N.  Y.  lSb5;  25  Fed.  Rep. 
408,  Brown,  J.,  Vol.  II, 

Aiuericau  lus.  Co.  vs.  Cauter, 
U.  S.  «up.  Ct.  1828;  1  Peters, 
511,  Marshall,  Ch.  J., 
Vol.  I,  27,  28,  61,  78,  80,  1:«, 
490,  498,  535,  537,  538,  545, 
5.")2  553 
Vol.  II,  147,  152,  159'  160i 
178, 

American  Net  and  Twine  Co. 
vs.  Worthiug'ton.  U.b.  Sup, 
Ct.  18'J1;  141  U.  S.  468, 
Brown,  J.,  Vol.  I, 

American  Pub.  Co.  vs.  Fislier. 
U.  S.  Sup.  UC.  1^97;  166  U.  S. 
464,  Brewer,   J.,  Vol.  I. 

545   549 

Amiable  Isabella,  The.  U.  S.' 
Sup.  Ct.  1821;  6  Wheaton,  1, 
Story,  J.,  Vol.  I,      543,  550, 

Vol.  IT,  146, 

Amy  Warwick,    The.    U.   S. 

Dist.  Ct.  Mass.  1862;  2 
Sprague,  123  and  451, 
Sprague,  J.,  Vol.  I,         535, 

Anarchist  ( Chirago)  cases.  See 
Spies  vs.  Illinois. 

Andriano,  ]\Jissouri  vs.  See 
Missouri  vs.  Andriano. 

Augerica  vs.  Bayard.    U.  S. 

Sup.  Ct.  1887;  127  U.  S.  251, 

Blatchford,    J,,    Vol.    II, 

305, 

Antelope,  The.    U.  S.  Sup.  Ct. 
1825;  10  Wheaton,  66,  Mar- 
shall, Ch.  J,,  Vol.  I, 
Vol.  II, 

Apollo,  The  Ship.  See  Ship 
Apollo,  The. 

ApT>eal,  Alter's.  See  Alter's 
Appeal. 

Appeal,  Lockers.  See  Locke''s 
Appeal. 

Appeal,  PalaireVs.  See  Palu- 
ireVs  Appeal. 

Arizona,  Marsh  vs.  See  Marsh 
vs.  Arizona. 

Arkansas,  Beers  vs.  State  of. 
See  Beers  vs.  State  of  Arkan- 
sas. 


474 


359 


471 
550 
556 

169 

226 


547 


008 
555 


552 
558 
361 


544 
550 


371 


535 
329 


Page 

Arkansas,  State  of,  Wilburn  vs. 
See  Wilburn  vs.  State  &c.  (2 
cases). 

Armas,  New  Orleans  vs.  See 
Neio  Orleans  vs.  Armas. 

Armstrong-  vs.  United  States 
(Insular  case).  U.  S.  Sup. 
Ct.  19U1;  182  U.  S.  243, 
Brown,  J.,  Vol.  I, 

119,  124,  127,  461,  469,  496,  502 

Arnold  vs.  United  States. 
U.  S.  Sup.Ct.  1815;  9  Cranch. 
104,  Story,  J.,  Vol.  I,  571 

Arredondo,  United  States  vs. 
See  United  States  vs.  Ar- 
redondo. 

Asher  vs.  Texas.  U.  S.  Sup.  Ct. 
1888;  128  U.  S.  129,  Brad- 
ley, J.,  Vol.  I,  546,  547,  548 

Assif/nee  {Fi.'<her's),  United 
States  vs.  See  United  States 
vs.  Fisher^s  Assii/nee. 

Association  (Loan)  vs.  Topeka. 
See  Loan  Ass'n  vs.  Tojieka. 

Astiazaran  vs.  Santa  Rita  L. 
&  M.  Co.  U.  S.  Sup.  Ct. 
1893;  148  U.  S.  80,  Gray,  J., 
Vol.  II,  184 

Astor,  Ex  dem.  &c..  Carver  vs. 
See  Carver  vs.   Jackson,  &c. 

Atl.  and  Pac.  R.  E.  Co.,  Bell 
vs.  See  Bell  vs.  Atl.  &  Pac. 
E.  E.  Co. 

Atlantic  Bock  Co.,  Giisioold 
vs.  See  Grisivoldvs.  Atlantic 
Dork  Co. 

Atocha,  In  re.  U.  S.  Sup.  Ct. 
1873;  17  Wallace,  439,  Vol.  II, 

289,  303,  306 

Atocha  vs.  United  States. 
U.  S.  Court  of  Claims,  1872; 
8  Ct.  of  Clms.  427,  Drake, 
Ch.  J.,  Vol.  II,  306 

Attorney  Gen'l  vs.  Detroit. 
Sup.  Ct.  Mich.  1889.  78 
Mich.  545,  Morse,  J., 
Vol.  II,  169 

Avguisola,  United  States  vs. 
See  United  States  vs.  Augui- 
sola. 

Auterive  vs.  United  States. 
See  D'' Auterive  vs.  United 
States. 

Ayers  &c..  In  re.  U.  S.  Sup. 
Ct.  1887;  123  U.  S.  443,  Mat- 
thews, J.,  Vol.  II  220 

Bacharach  vs.  La  grave. 
N.  Y.  Sup.  Ct.  Gen.  Term, 
1874;  1  Hun  689,  Daniels, 
J.,  Vol.  II,  273 


TABLE   OF   OASES. 


xlv 


Page 

Bache,  Frevell  vs.  See  Frevell 
vs.  Baclte. 

Bachiuau  vs.  Lawson.  U.  S. 
Sup.  Ct.  1884;  109  U.  S.  659, 
Gray,  J.,  Vol.  II,  291 

Baez,  111  re.  U.  S.  Sup.  Ct. 
1900;  177  U.  S.  878,  Ful- 
ler, Ch.  J.,  Vol.  II,  170 

Bahuaiid  vs.  IJlze.  U.  S.  Cir. 
Ct.  Nebraska,  1901;  105  Fed. 
Kep.  485,  MuNGEK,  J., 
Vol.  II,  45 

Baker  vs.  City  of  Portlaud. 
U.  S.  Cir.  Ct.  Oregon,  18711; 
5  Sawyer,  566,  Fed.  Cas.  777, 
Deady,  J.,  Vol.  II,  27 

Baldwin,  In  re.  U.  S.  Cir.  Ct. 
Cal.,  1886;  11  Sawyer,  533, 
Sawyek  and  Sabin,  JJ., 
Vol.  II,  117 

Baldwin  vs.  Ely.  U.  S.  Sup. 
Ct.  1850;  9  Howard,  580, 
Taney,  Ch.  J.,  Vol.  II,  296 

Baldwin  vs.  Franks.  U.  S. 
Sup.  Ct.  1887,  120  U.  S.  678, 
Waite,  Ch.  J.,  Vol.  I,  70 

Vol.  II,  117,  120 

Baldwin  vs.  Gfoldfrank.  Sup. 
Cc.  Texas,  l89.j;  88  Tex.  249, 
Gaines,  Ch.  J.,  Vol.  II,  56 

Baldwin,  Midler  vs.  See  Mid- 
ler vs.  Baldwin. 

Baldwin,  Bohertson  vs.  See 
Robertson  vs.  Baldwin. 

Baltimore,  Barron  vs.  See 
Barron  vs.  Baltimore. 

Balliinore  City,  Barney  vs. 
See  Barney  vs.  Baltimore 
CVy. 

Baltimore,  Lord,  Penn  vs. 
See  Pfiin  vs.  Lord  Baltimore. 

Baltz  Brewing"  C<».  v.  Kaiser* 
Brauerei,  Beck  &  Co.  U.  S. 
Cir.  Ct.  App.  3d  Cir.  1896; 
39  U.  S.  App.  229,  Wales, 
J.,  Vol.  II,  328 

Bancroft,  Adams  vs.  See 
Adams  vs.  Bancroft. 

Baird,  Widker  vs.  See  Wal- 
ker vs.  Baird. 

Bank  of  Columbia  vs.  Okely. 
U.  S.  Sup.  V,t.  1819;  4 
Wheaton,  235,  Johnson,  J., 
Vol.  I,  62,  549,  555 

Bank  of  Kentucky,  Briscoe  vs. 
See  Briscoe  vs.  Bank  &c. 

Bank,  Mechanics' ,  vs.  Union 
Bank.  See  Mechanics''  Bank 
vs.   Union  Bank. 


Page 

Bank,  Miner^s,  vs.  Iowa.  See 
Miner''s  Bank  vs.  Iowa. 

Bank,  National,  County  of  Wil- 
son vs.  See  CoiDdy  of  Wil- 
son vs.  National  Bank. 

Bank,  National,  vs.  County  of 
Yankton.  See  National  Bank 
vs.  County  of  Yankton. 

Bank,  New  Orleans  Savings, 
Addison  vs.  See  Addison  vs. 
New  Orleans  Savint/s  Bank. 

Bank,  Union,  Mechanics^ 
Bunk  vs.  See  Mechanics' 
Bank  vs.  Union  Bank. 

Bank,  United  States,  Osborne 
vs.  See  Onborne  vs.  Bank  of 
United  States. 

Banks,  Carneal  vs.  See  Car- 
neal  vs.  Banks. 

Bap.  Miss.  Union,  Turner  vs. 
See  Turner  vs.  Am.  Bap.  &c. 

Barbier  vs.  Connolly  (San 
Francisco  Laundry  case). 
U.  S.  Sup.  Ct.,  1885;  113 
U.  S.  27,  Field,  J.,  Vol.  II, 

1,31 

Barloiv  {People  ex  ret.  &c.),  vs. 
Curtis.  See  People  &c, 
{Neiv  York)  vs.  Curtis. 

Barnes  vs.  Dist.  of  Col.  U.  S. 
Sup.  Ct.  1875;  91  U.  S.  542, 
Hunt,  .!.,  Vol.  I,       540,  .555,  556 

Barque  Havana,  The.  U.  S. 
Dist.  Ct.  Mass.  1858;  1 
Sprague,  402,  Spbague,  J.. 
Vol.  II,  330 

Barney  vs.  Baltimore  City. 
U.  S.  Sup.  Ct.  1867;  6  Wal- 
lace, 280,  MiLLEK,  J.,  Vol.  I, 

540,  547 

Barney,  Powers  vs.  See 
Poivers  vs.  Barney. 

Barron  vs.  Baltimore.  U.  S. 
Sup.  Ct.  1833;  7  Peters,  24-3, 
Marshall,  Ch.  J.,   Vol.  I, 

190,  535 

Bartram  vs.  Robertson. 
U.  S.  Cir.  Ct.  S.  D.  N.  Y. 
1883;  21  Blatciif.  211;  15  Fed. 
Rep.  212,  Wallace,  J.,  af- 
tirined  U.  S.  Sup.  Ct.  1887; 
122  U.  S.  116,  Field,  J., 
Vol.  I,  454 

Vol.  II,  72,  73 

Barnch,  In  re.  U.  S.  Dist.  Ct. 
8.  D.  N.  Y.  1890;  41  Fed. 
Kep.  472,  Brown,  J.,  Vol.  II,  275 

Bas  vs.  Tingy.  U.  S.  Sup.  Ct. 
1800;  4  Dallas,  37,    Moobe, 


xlvi 


TABLE   OF   CASES. 


rage 
Wasiiixgton,     Pattekson, 
.1.1.,  Vol.  II,  125,  132 

Bates  vs.  Clark.    U.  S.  Sup. 
Ct.  JST7;  U5  U.  S.  204,  Mil- 
ler, J.,  Vol.  I,  560,  502 
V(.l.  II,  207 

Bates,  Pittshunfh  &  Sou.  Coal 
Co.  vs.  See  PiitshwgJi  &  Sou. 
Coal  Co.  vs.  Batf\s. 

Baiimauu  vs.  Ross.  U.  S. 
Sup.  (Jt.  1896;  107,  U.  S.  548, 
Gkay,  J.,  Vol.  I,  539 

Baijard,  Ang  erica  vs.  See 
Angerica  vs.  Bayard. 

Bayard  vs.  United  States  ex 
rel.  White.  U.  S.  Sup.  Ct. 
1887;  1:^:7  U.  S.  246,  Blatch- 
FORD,  J.,  Vol.  II,  295 

Beach,  Jackson  vs.  See  Jack- 
son vs.  Beach. 

Beardsley,  Godfrei/  vs.  See 
Godfrey  vs.  Beardsley. 

Becherdass  Aiiibaidass,  The. 
U.  S.  Di.st.  Ct.  Mass.  1871; 
1  Lowell,  569,  Loavell,  J., 
Vol.  II,  330 

Beck,  Flournoy  &c.  Co.  vs. 
See  Flournoy  vs.  Beck. 

Bedreechund,  Elphinstone  vs. 
See  Elpldnstone  vs.  Bed- 
reechund. 

Beecher  vs.  Wetherhy.  U.  S. 
Sup.  Ct.  1877;  95  U.  S.  517, 
Field,  J.,  Vol.  II,  206 

Beers  vs.  State  of  Arkansas. 
U.  S.  Sup.  (Jt.  1857;  20 
Howard,  527,  Taney,  Ch.  J., 
Vol.  II.  220 

Behreudt,  In  re.  U.  S. 
Dist.  Ct.  S.  D.  N.  Y.  1884; 
23  Blatchford,  40  Brown,  J., 
Vol.  II,  262 

Behring  Sea  Cases.  See  Beh- 
ring  Sea  Cases. 

Beige,  The  Parlement.  See 
Parlemeiif  Bflge,  The. 

Belgenlaud,  The.  U.  S.  Sup. 
Ct.  1>83;  114  U.  S.  3.-)5, 
Bradley.  .!..  Vol.  II,       329,  331 

Bell  vs.  All.  &  Pac.  R.  R..  Co. 
U.  S.  Cir.  Ct.  App.  Sth  Cir. 
1894;  27  U,  S.  App.  305, 
Caldwell,  J.,  Vol.  il,  222 

Bell,  Lewis  vs.  See  Lewis  vs. 
Bell. 

Bell,  Hopkirk  vs.  See  Hop- 
kirk  vs.  Bell. 

Bello  Corrunes,  The.  U.  S. 
Sup.  Ct.  1821;  6  Wheaton, 
152,   Johnson,   J.,   Vol.   II,  336 


Page 

Bell's  Gap  R.  R.  Co.  vs.  Penn- 
sylvania. U.  S.  Sup.  Ct. 
1889;  134  U.  S.  232,  Brad- 
ley, J.,  Vol.  II,  34,  213 

Benner  vs.  Porter.  U.  S. 
Sup.  Ct.  1850;  9  Howard, 
235,  Nelson,  J.,  Vol.  I,  539 

Bennett,  Oakey  vs.  See  Oakey 
vs.  liennett. 

Benson,  Li  re.  See  Benson  vs. 
McMahon. 

Benson  vs.  McMahon.  U.  S. 
Sup.  Ct.  1888;  127  U.  S.  457, 
Miller,  J.;  affirming.  In  re 
Benson.  U.  S.  Cir.  Ct.  S.  D. 
N.  Y.  1888;  34  Fed.  Rep.  649, 
Lacombe,  Vol.  II,      98,  105,  262 

Bering  Sea  Cases.  See  In  re 
Cooper ;  La  Ninfa. 

Berry,  United  States  vs.  See 
United  States  vs.  Berry. 

Best  vs.  Polk.  U.  S.  Sup.  Ct. 
1873;  18  Wallace  112,  Da- 
vis, J.,  Vol.  II,  217 

Betsey,  Glc(ss  vs.  The  Sloop. 
See  Glass  vs.  The  Sloop  Bet- 
sey. 

Betsey,  The  Ship.  See  Ship 
Betsey,  The. 

Bidwell,  Cruikshank  vs.  See 
Cruikshank  vs.  Bidwell. 

Bidivell  De  Lima  vs.  See  Be 
Lima  vs.  Bidwell. 

Bidwell,  Downes  vs.  See 
Downes  vs.  Bidwell. 

Bidwell,  Lascelles  vs.  See  Las- 
celles  vs.  Bidwell. 

Bi.'ihop  of  Natal,  Lord.  See 
Lord  Bishop  of  Natal. 

Bize,  Bahuaudxs.  See  Bahuaud 
vs.  Bize. 

Black  vs.  Jackson.  U.  S.  Sup. 
Ct.  1899;  177  U.  S.  349,  Har- 
lan, J.,  Vol.  I,  539 

Blacker,  McPherson  vs.  See 
McPherson  vs.  Blacker. 

Blackfeather,  United  States  vs. 
United  States  vs.  Black- 
feather. 

Blackledge,  Ogden  vs.  See  Og- 
deii  vs.  Blackledge. 

Blacksmith  vs.  Fellows. 
N.  Y.  Ct.  of  App.  18.52;  7 
N.  Y.  401,  Edmonds,  J., 
Vol.  II,  207,  212 

Blacksmith,  Fellows  vs.  See 
Fellows  vs.  Blacksmith. 

Blar/ge  vs.  United  States.  See 
Brig  William,  The. 

Blaine,    United   States  ex  rel. 


TABLE   OF   CASES. 


xlvii 


Pacre 


aee  Bol- 


See 


Boynton  vs.  See  United 
States  ex  rel.  Boijntou  vs. 
Blaine. 

Blake,  Bollernuin  vs. 
lerinan  vs.  Blake. 

Blake,    Lochburouyh    vs. 
Lochborow/h  vs.  Blake. 

Blaiidford  vs.  State.  Ct.  of 
App.  Texas,  1«81;  10  Tex. 
Ct.  App.  Crira.  Cas.  627, 
Hurt,  J.,  Vol.  II,       79,  271, 

Blaakard  vs.  Galdy.  King  & 
Queen's  Bench,  5  Wm.  & 
Mary,  4  Mod.  222,  Feb  Cu- 
riam, Vol.  I,  550, 
Vol.  II, 

Blight  vs.  Rochester.  U.  S. 
Sup.  Ct.  1822;  7  Wheaton, 
535,  Marshall,  Ch.  J., 
Vol.  II,  15, 

Board  of  Health,  (Louisiana), 
Compagnie  Francaise  vs.  See 
Co^npannie  Franraiae  vs. 
State  Board  of  Health. 

Board  of  Health  (Louisiana), 
Morgan  S.  S.  Co.  vs.  See 
Morgan  S.  S.  Co.  vs.  Louisi- 
ana Board  of  Health. 

Board  of  Port  Wardens,  Cooler/ 
vs.  See  Cooley  vs.  Board  of 
Port  Wardens. 

Bodley  vs.  Ferguson.  Sup. 
ct.  Cala.  18(36;  oO   (Jala.  511, 

SlIAFTEB,  J.,   Vol.   II, 

Bollerinann  vs.  Blake.  N.  Y. 
Ct.  of  App.  188;];  94  N.  Y. 
624,  Earl,  J.,  Vol.  II, 

Booth,  Ableman  vs.  See  Able- 
man  vs.  Booth. 

Borden,  Luther  ys.  Seo  Luther 
vs.  Borden. 

Borgnieyer  vs.  Idler.  U.  S. 
Sup.  Ct.  1895;  159  U.  S.  408, 
Fuller,  Ch.  J.,  Vol.  II, 

Boston,  City  of,  Norrls  vs. 
Norris  vs.  City  of  Boston. 

Botiller  vs.  Boiningiioz. 
S.  Sup.    Ct.    1889,    130    U, 
238,  Miller,  J.,  Vol.  II, 

182, 

Bruffy,  Williams  vs.  See  Wil- 
liams vs.  Bruffy. 

Bourne,  Merrymnn  vs.  See 
Merryman  vs.  Bourne. 

Bowlby,  Shively  vs.  See  Shively 
vs.  Bowlby. 

Boyd  vs.    Nebraska    ex    rel. 

Thayer.       U.    S.    Sup.    Ct. 

1892;  143  U.  S.  135,  Fuller, 

Ch.  J.,  Vol.  I,  537, 

552,  555,  556, 


273 


553 

166 


179 


See 


U. 

s. 


296 


181 
185 


539 
558 


Page 
Vol.  II,  45,  168 

Boyd  vs.  United  States.    U.  S. 

Sup.  Cr.  1886;  116  U.  S.  616, 
Bradley,  J.,  Vol.  I,         540,  555 

Boyd,  United  States  vs.  See 
United  States  vs.  Boyd. 

Boyle,  Thirty  Hogsheads  of 
Sugar  vs.  See  Thirty  Hogs- 
heads, etc.,  vs.  Boyle. 

Boynton,  United  States  ex  rel. 
vs.  Blaine.  See  United  States 
ex  rel.  Boynton  vs.  Blaine. 

Braden,  Clark  vs.  See  Clark 
vs.  Braden. 

Bradjord,  HeardYS.  See  Heard 
vs.  Bradford. 

Brailsjord,  State  o}  Georgia  vs. 
See  State  of  Georgia  vs. 
Brailsford. 

Brame,  Insurance  Co.  vs.  See 
Insurance  Co.  vs.  Brame. 

Brandy,  43  Gallons  of.  See 
Forty-three  Gallons  of  Brandy. 

Breen,  In  re.  U.  S.  Cir.  Ct.  S. 
D.  N.  Y.  1896;  73  Fed.  Kep. 
458,  Lacombe,  J.,  Vol.  II,       262 

Brennan  vs.  Titusville.  U.  S. 
Sup.  Ct.  1894;  1.^3  U.  S.  289, 
Bkewek,  J.,  Vol.  I,  546 

Brewster,  State  of  Vermont  vs. 
See  State  of  Vermont  vs. 
Brewster. 

Bridge,  The  Clinton.  See  The 
Clinton  Bridge. 

Bridge  Co.,  Pennsylvania  vs. 
Wheeling.  See  Pennsylvania 
vs.  Wheeling  Bridge  Co. 

Bridleman,  United  States  vs. 
See  United  States  vs.  Bridle- 
man. 

BrlgVenns,  The.  U.  S.  Ct. 
of  Claims,  1892;  27  Ct.  of 
Clms.  116,  NoTT,  J.,  Vol.  II,  284 

Brig  William,  The.  IT.  S.  Ct. 
of  Claims,  1888;  23  Ct.  of 
Clms.  201,  ScoFiELD,  J,,  Vol. 
II,  284 

Briggs  vs.  Sample.  U.  S.  Cir. 
Ct.  Kansas,  1890;  43  Fed. 
Rep.  102,  Foster,  J.,  Vol.  II,  223 

Brimson,  Interstate  Commerce 
Commission  vs.  See  Inter- 
state Commerce  Commission 
vs.  Brimson. 

Briscoe  vs.  Bank  of  Kentucky. 
U.  S.  Sup.  Ct.  1837;  11  Peters 
257,  McLean,  J.,  Vol.  I,  190,  535 
546,  549 

British  Prisoners,  The.  U.  S. 
Cir.  Ct.  Mass.  1845;  1  Wood- 
bury &    Minot,    66,  Wood- 


xlviii 


TABLE   OF   CASES. 


Pactq 

BURY,  J.,  Vol.  II,  63,  79,  258,  259 

Brock,  Hutchinson  vs.  See 
Hutchinson  vs.  Brock. 

Brocklin  Van,  State  of  Ten- 
nessee vs.  See  Van  Brocklin 
vs.  Slate  of  Tennessee. 

Brooks,  Marsh  vs.  See  Marsh 
vs.  Brooks. 

Brooks  vs.  Missouri.  U.  S. 
Sup.  Ct.  18S8;  124  U.  S.  394, 
Waite,  Ch.  J.,  Vol.  II,  56 

Brooks,  United  States  vs.  See 
United  States  vs.  Brooks. 

Browder,  Preston  vs.  See 
Preston  vs.  Broicder. 

Brown  vs.  Brown.  Sup.  Ct. 
Nor.  Car.  1890;  106  X.  C. 
Rep.  451,  Davis,  J..   Vol.  II,  213 

Brown  vs.   Houston.      U.   S. 
Sup.  Ct.  Ibti.j;  114  U.  S.  622, 
Bradley,  J.,  Vol.  I,        571,  575 
576,  578,  582 

Broion,  Hylton  vs.  See  Brown 
vs.  Hylton. 

Brown  vs.  Maryland.  U.  S. 
Sup.  Ct.  1827;  IJ.  Wlieaton, 
419,  Marshall,  Ch.  J., 
Vol.  I,    540,  546,  548,  570,  576,  584 

Brown  vs.  Aew  Jersey.  U-  S. 
Sup.  Ct.  1S9;»;  175  U.  S.  172, 
Bke^ver.  .J..  Vol.  I,  549 

Brown  vs.  Piper.  U.  S.  Sup. 
Ct.  1875;  91  U.  S.  37, 
Stvayne,  J.,  Vol.  II,  216 

Brown  vs.  Spragriie.  X.  Y. 
Sup.  Ct.  1848;  5  Denio.  545, 
Beardsley,  Ch.  J.,  Vol.  II,     15 

Brown,  Taylor  vs.  See  Taylor 
vs.  Brniru. 

Brown  vs.  United  States.  U. 
S.  Ct.  of  Claims,  1897;  32  Ct. 
of  Clms,  432,  XoTT,  J., 
Vol.  II,  212,  223 

Bryan  vs.  Keunett.  U.  S. 
Sup.  Ct.  1885;  113  U.  S.  179, 
Hahlax,  J.,  Vol.  II,         147,  179 

Bryant,  In  re.  See  Bryant  vs. 
United  St'tfes. 

Bryant  vs.  United  States.    U. 

S.  Sup.   Ct.   1897;  167  U.   S. 

104,     Browx,     J.,    affirming 

In  re  Bryant.     U.  S.  Cir.  Ct. 

S.  D.  X.  Y.  1897;  80  Fed.  Kep. 

282.  Lacombe.  ,I.,  Vol.  II,  262 
Bnckner    vs.    Finley.    U.  S. 

Sup.  Ct.  1829;  2  Peters,  586, 

Washington.  J.,  Vol.  I,  535 

Bndzisz  vs.  Illinois  Steel  Co. 

U.  S.  Sup.  Ct.  1898;  170  U.  S. 

41,  Shiras,  J.,  Vol.  II,  225 


Page 

Budzisz,   Illinois   Steel  Co.  vs. 

See     Illiyiois     Steel   Co.    vs. 

Budzisz. 
Buffalo  R.   &  P.  R.  R.  Co. 

vs.  Lavery.  N.  Y.  Sup.  Ct. 
5th  Dept.'l894;  75  Hun,  396, 
Bradley,  J.,  Vol.  II,        38,  213 

Bunbury,  Weimer  vs.  See 
Weimer  vs.  Bunbury. 

Bunch,  Mitchell  vs.  See  Mitch- 
ell vs.  Bunch. 

Burcliard,  The.  U.  S.  Dist. 
Ct.  Alabama,  1890;  42  Fed. 
Kep.  608,  TouLMiN,  J., 
Vol.  II,  331,  332 

Burge.'iS,  Turpinvs.  SeeTurjyin 
vs.  Burgess. 

Burrows  Lithographic  Co.  vs. 
Sarony.  See  Lithographic  Co. 
vs.  Sarony. 

Bnrthe  vs.  Denis.  U.  S.  Sup. 
Ct.  1890;  133  U.  S.  514, 
Field.  J.,  Vol.  II,  296 

Bush  vs.  United  States.  U.  S. 
Ct.  of  Claims,  1894;  29  Ct.  of 
Clms.  144,  Weldon,  .1., 
V.)l.  II,  217 

Buttz  vs.  JVorthern  Pacific  R. 
R.  Co.  U.  S.  Sup.  Ct.  1886; 
119  U.  S.  55,  Field,  J., 
Vol.  II,  225 

Bvzzards  Bay  Fishery  Case. 
See  Manchester  vs.  Massachu- 
setts. 

Caha  vs.  United  States.  U.  S. 
Sup.  Ct.  1894;  L52  U.  S.  211, 
Brewer.  .J.,  Vol.  II,  216 

Caldera  Cases,  The.  U.  S. 
Ct.  Claims,  1879;  15  Ct.  Clms. 
546,  Drake,  Ch.  J.,  Vol.  II,    296 

Caldwell,  Bohinson  vs.  See 
Eohinson  vs.  Caldwell. 

Caldwell,  United  Stales  vs.  See 
United  States  vs.  Caldwell. 

California  &  Oregon  Loau  Co. 
vs.  Worden.  U.  S.  Cir.  Ct. 
Oieooa,  1898;  85  Fed.  Rep. 
94  and  87  Fed.  Rep.  .532,  Bel- 
linger, J.,  Vol.  II.  225 

California,  Ahny  vs.  See  Almy 
vs.  California. 

Call  omia,  Hurtado  vs.  See 
Hurtddo  vs.  Cali'ornia. 

California  Mr  Call  vs.  See  Mc- 
Call  vs.  California. 

California,  People  of,  vs.  Nag- 
lee.  See  People  dbc.  v.  Naglee. 

California,  People  <f,  vs.  Wash- 
ington. See  People  <fcc.  vs. 
Washington. 


TABLE   OF   CASES. 


xlix 


Page 

California,  People  of,  vs.  Gerke. 
See  People  &c.  vs.  Gerke. 

Calluuhan,  Stewart  vs.  See 
Stewart  vs.  Callaghan,. 

Callan  vs.  Wilsou.  U.  S.  Sup. 
Ct.  1887;  127  U.  S.  540,  Hak- 
LAN,  J.,  Vol.  I,  540,  555 

Callsen  vs.  Hope.  U.  S.  Dist. 
Ct.  Alaska,  1M)6;  75  Fed.  Rep. 
7o8,  Delaney,  J.,  Vol.  II,       180 

Calkin  vs.  Cocke.  U.  S.  Sup. 
Ct.  1852;  14  Howard,  227, 
Nelson,  J.,  Vol.  I,  220 

Vol.  II,  165 

Campbell,  State  of  Miimenota 
vs.  See  State  of  Mian.  vs. 
Campbell. 

Calvin's  Case.  Court  of  Ex- 
chequer Cliamber;  6  James  I. 
4  Coke  1,  Vol.  I,        550,  553,  555 

556 
Vol.  II,  166 

Campbell    vs.    Hall.     Ct.   of 
King's    Bench,    15   Geo.   Ill, 
Cow  per,    204.     Lord    Mans- 
field, Vol.  I,     550,  553,  555,  556 
Vol.  II,  166 

Campbell,  McKay  vs.  See  Mc- 
Kai/  vs.  Campbell. 

Canal  Appraisers  vs.  People. 
N.  Y.  Ct.  of  Errors,  1^36;  17 
Wendell,  570,  Walwokth, 
Chan.,  Vol.  II,  84 

Cannon,  In  re.  Sup.  Ct.  Mich- 
igan, 18^2;  47  Mich.  481, 
Campbell,  J.,  Vol.  II,  274 

Canter,  American  Ins.  Co.  vs. 
See  Am.  Ins.  Co.  v.  Canter. 

Cantini  vs.  Tillman.  U.  S.  Cir. 
Ct.  So.  Car.  1893;  54  Fed. 
Rep.  969,  SiMONTON,  J., 
Vol.  II,  49 

Capital  Traction  Co.  vs.  Hof. 
U.  S.  Sup.  Ct.  1899,  174  U.  S. 
1,  Gray,  J.,  Vol.  1,  540,  555 

Captain  Jack,  In  re.  U.  S. 
Sup.  Ct.  1889;  130  U.  S.  353, 
Miller,  J.,  Vol.  II,  230 

Cargo,  The  Adventure  and.  See 
Adventure  and  Cargo,  The. 

Cargo,  The  Eliza  and.  See 
Eliza  and  Cargo,  The. 

Cargo,  The  Lark  and.  See 
Lark  and  Cargo,  The. 

Cargo,  The  Salli/  and.  See 
Sally  and  Cargo,  The. 

Carlisle    vs.   United    States. 
U.  S.  Sup.  Ct.  1872;  16  Wal- 
lace,  147,  Field,  J.,  Vol.  I,     550 
Vol.  II,  293,  295 

Carneal  vs.  Banks.    U.  S.  Sup. 


Page 

Ct.    1825;  10  Wheaton,   181, 
Marshall,  Ch.  J.,  Vol.  II,       17 
22,  43,  147 

Carpenter,  United  States  vs. 
See  United  States  vs.  Carpen- 
ter. 

Carriage  Tax  case.  See  Hyl- 
ton  vs.  Brown. 

Carrier,  In  re.  U.  S.  Dist.  Ct. 
Colorado,  1893;  57  Fed.  Rep. 
578,  Hallett,  J.,  Vol.  II,       262 

Carver  vs.  Jackson.  U.  S. 
Sup.  Ct.  183U;  4  Peters,  1, 
Stouy,  J.,  Vol.  II,  15 

Castillero,  United  States  vs. 
See  United  States  vs.  Castil- 
lero. 

Castine,  Case  The.  See  United 
States  vs.  Eire. 

Castro  vs.  DeUriate.  U.  S. 
Dist.  Ct.  S.  D.  N.  Y.  1882;  12 
Fed.  Rep.  250,  and  1883;  16 
Fed.  Rep.  93,  Brown,  J. 
Vol.  I,  543,  545,  558 

Vol.  II,  79,  263,  361 

Catherina,  The.  U.  S.  Dist. 
Ct.  Peiina.  1795;  1  Peters' 
Adm.  Rep.  104,  Peters,  J., 
Vol.  II,  330 

Cattle  Companies.  See  Land 
Mining  &  Cattle  (hs. 

Cessna  vs.  United  States. 
U.  S.  Sup.  Ct.  1898;  169  U.  S. 
165,    Brewer,  J.,  Vol.  II,       183 

Chae  Chan  Ping,  In  re.  See 
Chae  Chan  Ping  vs.  United 
States. 

Chae  Chan  Ping'  vs.  United 
States  (Chinese  Exclusion 
case).    U.  S.  Sup.  ct.  I8b9; 
130   U.    S.    581,    FiEi.r*.   J., 
affirming  In  re  Chae   Chan 
Ping.     U.   S.   Cir.  Ct.   Cala. 
1888;      36     Fed.     Rep.     431, 
Sawyer,   J.,   Vol.   I,    16,  53,   55 
190,  454,   456,  535,   542,  543,  552 
558,  560 
Vol.  II,  84,  86,  93,  94,  95,  97,  102 
103,    105,   106,   109,  120,   121,  361 

Chamberlain,  De  La  Croix  vs. 
See  De  La  Croix  vs.  Chamber' 
lain. 

Chambers,  Kennett  vs.  See 
Kennett  vs.  Chambers. 

Chapman  vs.  Toy  Long.  U.  S. 
Cir.  Ct.  Oregon,  1876;  4 
Sawder,  28,  Deady,  J., 
Vol.11,  119 

Charkieh,  The.  Adm.  Court, 
1873;  Cobbett's  Cas.  Int. 
Law,     9,     Phillimore,    J., 


1 


TABLE  OF    CASES. 


Page 
Vol.  I,  535,  545 

Cliarleston,    In    re.     U.    S. 

Dist.  Ct.  Miuu.  1888;  34  Fed. 
Kep.  531,  Nelson,  J., 
A^ol.  II,  262 

Chaves,  United  States  vs.  See 
United  States  vs.  Chaves. 

Chavez,  United  States  vs.  See 
United  States  vs.  Chavez. 

Clieong  Ah  Moy  vs.  United 
States.  U.  S.  Sup.  Ct. 
l88o;  113  U.  S.  216,  Milleb, 
J.,  Vol.  II,  361 

Cherokee  Indians  (  Western)  vs. 
United  States.  See  Western 
Cherokee  Indians  vs.  United 
States. 

Cherokee  Xation  vs.  Journey- 
cake.  U.  S.  Sup.  Ct.  1894; 
15.j  U.  S.  196,  Brewer,  J., 
Vol.  II,  223 

Cherokee  Nation  vs.    South- 
ern Kansas  Ey.  Co.    U.  S. 
Sup.  Ct.  1890;   135  U.  S.  641, 
Harlan,  J.,  Vol.  II,  209,  220,  221 
225,  296 

Cherokee  Nation  vs.  State  of 
Georg'ia.    U.    S.    Sup.    Ct. 
1831;     5    Peters,     1,     Mar- 
shall,  Ch.   J.,  Vol.  I,  548,  550 
556,  561,  562 
Vol.  II,    173,    195,   203,  207,  208 
209,  210,  212,   215,   218,  225,  227 

Cherokee  Nation,  Joiirneycake 
vs.  See  Juurneycake  vs. 
Cherokee  Nation. 

Cherokee  Nation,  Stej)hens  vs. 
See  Stephens  vs.  Cherokee 
Nation. 

Cherokee  Tobacco,  The.  U. 
S.  Sup.  Ct.  1870;  11  Wallace, 
616,  SwAYNE,  J.,  affirming 
United  States  vs.  Tohacco 
Factory  U.  S.  Cir.  Ct. 
Arkansas,  1871;  1  Dillon, 
264,  Caldwell,  J.   Vol.    I, 

471,  493,  558,  560,  562 

Vol.  II,        63,  84,  85,  86,  134,  173 

183.  212,  349 

Cherokee  Trust  Funds,  The. 
U.  S.  Sup.  Ct.  1885;  117  U.S. 
288,     Field,     J.,    Vol.    II, 

214,  221,  235 

Cherokees,  Eastern  Band  of, 
vs.  United  States.  See  East- 
ern Band  of  Cherokees  vs. 
United  States. 

Chew  Heoni?  vs.  United  States. 
(Chinese  Exclusion  Ca.se.) 
U.  S.   Sup.   Ct.  1884;  112  U. 


Page 

S.  536,  Haklan,  J.,  Vol.  I, 

535,     542,     543,     5.52,     558,     560 

Vol.  II,        84,  86,  94,  98,  101,  116 

121,  361 

Chicago  Arnarchist  Cases.  See 
Spies  vs.  Illinois. 

Chicago  Lake  Front  Case.  See 
Illinois  Cent.  R.  E.  Co.  vs. 
Jllinois. 

Chicagro  Mil.  &c.  Ry.  Co. 
vs.  Tompkins.  U.  S.  Sup. 
Ct.  lUOO;  176  U.  S.  167, 
Brewer,  .1.,  Vol.  I,    62,  585,  549 

Chicago  Kock  Isld.  &c.  R. 
R.  Co.  vs.  McGlinn.  U.  S. 
b-up.  Ct.  1885;  114  U.  S.  .542, 
Field,  J.,  Vol.  I,  492,  554 

Vol.  II,  ■  165 

Chickasaw  Nation  vs.  United 
States.  U.  S.  Ct.  of  Claims, 
1887;  22  Ct.  of  Clms.  222, 
Davis,  J.,  Vol.  II,  201,  301 

Chicasaw  Nations,  Choctaw 
and,  vs.  United  States.  See 
Choctaw  and  Chicasaw  Na- 
tions vs.  United  States. 

Chief,  The  Genessee.  See  The 
Genessee  Chief. 

Chin  Ah  On,  In  re.  U.  S. 
Dist.  Ct.  Cala.  188:3;  9  Saw- 
yer, 343,  Hoffman,  J., 
Vol.  II,  115 

China  Mutual  Ins.  Co.  vs. 
United  States.  See  Caldera 
Cases. 

Chinese  Actor  C«se.  See  Ho 
King,  In  re. 

Chinese  Baby  Case.  See 
United  States  vs.  iVong  Kim 
Ark. 

Chinese  Cabin  Waiter  Cases. 
U.  S.  Cir.  Ct.  Cala.  1882;  13 
Fed.  Rep.  286,  Field,  J., 
Vol.  II,  114 

Chinese  Citizenship  Case.  See 
United  States  vs.  Wong  Kim 
Ark. 

Chinese  Dead  Body  Case.  See 
Chy  Lung  vs.  Freeman. 

Chinese  Exclusion  Cases.  See 
Chae  Chan  Ping  vs.  United 
States.  Chew  Heong  vs. 
United  States.  Fong  Yue 
Ting  vs.  United  States. 

Chinese  Indemnity  Cases.  See 
Caldera  Cases. 

Chinese  Laborers  on  Ship- 
board Case.  U.  S.  Cir.  Ct. 
Cala.  1882;  13  Fed.  Rep.  291, 
Field    and    Sawyer,    JJ., 


TABLE   OF   CASES. 


u 


Page 
Vol.  II,  114 

Chinese  Laundry  Cases.  See 
Barbler  vs.  Connolly.  Soon 
Ulng  vs.  United  States. 
United  States  vs.  Quong  Woo. 
Yi-lc  Wo  vs.  flojikins. 

Chinese  Merchant  Case. 
U.  6.  Cir.  (Jt.  Cila.  188:^;  18 
Fed.  Rep.  (jOj,  Field  and 
Hoffman,  JJ.,  Vol.  II,  114 

Chinese  Names.  See  In  re  Ah 
Chong  ;  In  re  Ah  Four/;  Inre 
Ah  Kee  ;  In  re  Ah  Lung  ;  In 
re  Ah  Ping  ;  In  re  Ah  Quan  ; 
In  re  Ah  Yup  ;  Chae  Cha)i 
Pin/,  In  re  and  vs.  United 
States ;  Chapnum  vs.  Toy 
Long;  Cheong  .  I  h  May  vs.  Uni- 
ted States;  Chew  Keong  vs. 
United  States  ;  In  re  Chin  Ah 
On;  In  re  Chang  Toy  Ho; 
Chy  Lung  vs.  Freeman;  Ekiu 
vs.  United  Slates ;  Fong  Yue 
Fing  vs.  United  States  ;  Gee 
Fook  Sing  vs.  United  States; 
In  re  Gee  Hop  ;  Ro-Ah-Kow 
vs.  Nunan  ;  In  re  Ho  King  ; 
In  re  Lau  Ow  Bew  ;  Lau  Ow 
Beio  VS.  United  States ;  Lem 
Hing  Dun  vs.  United  States  ; 
Lem  Moon  Sing  vs.  United 
States;  In  re  Leong  Yick  Dew; 
Lew  Jim  vs.  United  States  ; 
In  re  Look  Tin  Sing  ;  In  re 
Moncan,  alias  /1/i  Wah  ;  In 
re  Pong  Ah  Chee ;  Qaork 
Ting  vs.  United  States ;  In 
re  Quong  Woo  ;  In  re  Shong 
Toon ;  Soon  Hing  vs.  Crow- 
ley ;  Ex  parte  Tom  Tong  ;  In 
re  Tom  Yum ;  In  re  Tung 
Yeong  ;  United  States  vs. 
Ah  Fawn;  United  States  vs. 
Gue  Lim  (Mrs.);  United 
States  vs.  Jung  Ah  Lung ; 
United  States  vs.  Quong  Woo; 
United  States  vs.  Wong  Kim 
Ark  ;  Wau  Shing  vs.  tfnited 
States ;  Wong  Wing  v.  Uni- 
ted States;  In  re  Wong  Ying 
Quy. 

Chinese  Queue  Case.  See  Ho- 
Ah-Kow  vs.  Nunan. 

Chirac  vs.  Chirac.  U.  S.  Sup. 
Ct.  1817;  2  Wheaton  2.-)!), 
MAKSHAr,!,,  Ch.  J.,  Vol.  II, 
1,  14.  16,  17,  22,  43,  110,  131,  321 

Chisholm  vs.  Georgia.  U.  S. 
Sup.  Ct.  1793;  2  Dallas  419, 
Jay,  Ch.  J.;  Cushino,  Ikk- 


Page 

DELL,  Blair,  Wilson,  JJ., 

Vol.  I,    235,  238,  242,  243,  246,  260 

282,  535,  540,  542,  550 

Vol.  II,  220 

Choctaw  &  Chickasaw  Na- 
tions vs.  United  States.  U. 
S.  Ct.  of  Claims,  1899;  34  Ct. 
of  elms.  17,  HowKY,  J.,  Vol. 
II,  207,  235 

Choctaw  Nation  vs.  United 
States.  U.  S,  Sup.  Ct.  1886; 
119  U.  S.  1,  Matthews,  J., 
reversing  same  case  U.  S.  Ct. 
of  Claims,  1884;  19  Ct.  of 
Clms.  243,  Kichabdson,  J., 
Vol.  II,  235 

Choctaw  Tribe  of  Indians,  The- 
bo  vs.  See  Thebo  vs.  Choc- 
taw Tribe,  &c. 

Chouteau  vs.  Eclthart.    U.  S. 
Slip.  Ct.  18-14;  2  Howard,  344, 
Catron,  J.,  Vol.  I,   543,  554,  561 
Vol.  II,  165,  179,  185,  361 

Chouteau  vs.  United  States. 
U.  S.  Sup.  Ct.  1835;  9  Peters 
147,  Makshall,  Cli.  J.,  Vol. 
II,  179 

Christie,  Seneca  Nationvs.  See 
Seneca  Nation  vs.  Christie. 

Chung  Toy  Ho,  In  re.  U.  S. 
Dist.  Ct.  Oregon,  1890;  14 
Sawyer,  531,  Deady,  J., 
Vol.  II,  117 

Church  of  Latter  Day  Saints, 
&c.  vs.  United  States.  See 
Mormon  Church  vs.  United 
States. 

Chy  Lung  vs.  Freeman.  U.  S. 
Sup.  Ct.  1875;  92  IJ.  S.  275, 
Miller,  J.,  Vol.  II,     28,  50,  121 

City  of  Baltimore,  Barney  vs. 
See  Barney  vs.  Baltimore 
City. 

City  of  Baltimore,  Barron  vs. 
See  Barron  vs.  Baltimore. 

City  of  Boston,  Norris  vs.  See 
Norris  vs.  City  of  Boston. 

City  of  Detroit,  Attorney  Gen- 
eral vs.  See  Attorney  Gen- 
eral vs.  Detroit. 

City  of  Mobile.  Estava  vs.  See 
Mobile  vs.  Estnva. 

City  of  Neio  Orleans  vs.  Abbag- 
nuto.  See  New  Orleans  vs. 
Abbagnato. 

City  of  New  Orleans  vs.  Armas. 
See  Ne^v  Orleans  vs.  Armas. 

City  of  New  Orleans,  Fou- 
vergne  vs.  See  Fouvergne  vs. 
City  of  New  Orleans, 


lii 


TABLE  OF   CASES. 


Page 
Citij  of  New  Orleans,  May   vs. 

See  Ma;/  vs.  Neio  Orleans. 
City  of  New  Orleans  vs.  Steani- 

uliil)    Co.     See   New  Orleans 

vs.  SteanDiliij)  Co. 
City  of  New  Orleans  vs.  United 

States.     See  New  Orleans  vs. 

United  States. 
City  of  New  Orleans  vs.  Winter. 

See  New  Orleans  vs.  Winter. 
City  of  New  York,  Duryee  vs. 

See  Duryee  vs.  Mayor  of  New 

York. 
City  of  New   York,  Mayor  of, 

Henderson  vs.     See   Hender- 
son vs.  Mayor  of  New  York. 
City   of  New    York    vs.    Miln. 

See  New  York  vs.  Miln. 
City  of  Panama,  The.    U.  S. 

Sup.  Ci.  1871);  101  U.  S.  453. 

Clifford,  J.,  Vol.  I,  539 

City   nf  Portland,    Baker    vs. 

See  Baker  vs.  City  of  Port- 
land. 
City  (f  Philadelphia,  Oilman  vs. 

See  Gihnan  vs.  Philadelphia. 
City     of     Philadelphia,     Port 

Wardens  of,    Cooley  vs.     See 

Cooley    vs.    Board   of    Port 

Wardens. 
City  of  Santa  Fe,  United  States 

vs.      See    United   States  vs. 

City  of  Santa  Fe. 
City  of  Titusville,  Brennan  vs. 

See  Brennan  vs.  Jltusvllle. 
City  of  To))eka,  Loan  Ass'n  vs. 

See  Loan  Ass'^n  vs.  Topeka. 
Civil  Rig'hts    cases.      U.    S. 

Sup.  Gt.   1883;    109  U.  S.  3, 

Bradley,  J.,  Vol.  I,  70 

Cii:il  Right  Cases.    See  Bcddvnn 

vs.  Franks;  Baldwin,  In  re. 
Clapox,  United   States  vs.  See 

United  States  vs.  Clapox. 
Clark,  Bates  vs.     See  Bates  vs. 

Clark. 
Clark  (Doe)  vs.  Bradeii.   U.  S. 

Sup.    Ct.    185o;  16   Howard, 

635,  Taney,  Ch.  J.,  Vol.  I.,  537 
552,  555,  560,  561 

Vol.  II,        128,  146,  155,  165,  216 
Clark  vs.  Clark.     U.  S.  Sup. 

Ct.    1854;    17   Howard,    315, 

Catrox,  J.,  Vol.  II,  293,  294,  296 
Clark,   Field  vs.  See  Field  vs. 

Clark. 
Clark,  Jackson   vs.     See  Jack- 
son vs.  Clark. 
Clark,  Libby  vs.    See  Libby  vs. 

Clark. 


Page 

Clark,  Lynch  vs.  See  Lynch 
vs.  Clark. 

Clark,  Murray  vs.  See  Murray 
vs.  Clark. 

Clark,  Porterfleld's  Exrs.  vs. 
See  PorterJiekVs  E.crs.  vs. 
Clark. 

Clarke  vs.  Harwood.  U,  S. 
Sup.  Ct.  1797;  3  Dallas,  342, 
Per  Curiam,  Vol.  11,  12 

Clarke,  United  States  vs.  See 
United  States  vs.  Clarke. 

Clawson  vs.  Uuited  States. 
U.  S.  Sup.  Ct.  18b5;  114  U.  S. 
477,  Blatchford,  J.,  Vol.  I,  545 

Clinch,  Ropes  vs.  See  Ropes 
vs.  Clinch. 

Clinton  Bridge,  The.  U.  S. 
Cir.  Ct.  Iowa,  1S67;  1  Wool- 
worth,  150,  Miller,  J., 
Vol.  I,  543,  546,  558,  561 

Vol.  II,  361 

Clinton  vs.  Englebrecht.  U.  S. 
Sup.    Ct.    1871;  13    Wallace, 
434,  Chase,  Ch.  J.,  Vol.  I,     27 
130,  537,  539,  545 

Cochran,  West  vs.  See  West 
vs.  Cochran. 

Cocke,  Calkin  vs.  See  Calkin 
vs.  Cocke. 

Coe  vs.  Errol.  U.  S.  Sup.  Ct. 
1886;  116  U.  S.  517,  Brad- 
ley, J.,  Vol.  I,  548 

Coe,  United  States  vs.  See 
United  States  vs.  Coe  (2 
cases). 

Coffee   vs.    Groover.     U.    S. 
Sup.    Ct.    1887;  123  U.   S.   1, 
Bradley,  J.,  Vol.  I,        543,  558 
Vol.  II,  361 

Caff  man.  Gray  vs.  See  Gray 
vs.  Coffman. 

Cohens  vs.   Virg-inia.    U.   S. 
Sup.   Ct.    1821;    6  Wheaton, 
264,     Marshall,     Ch.     J., 
Vol.  I,  2,  16,  28,  44,  54,  535,  540 
542,  546,  548 
Vol.  II,  144 

Colden,  Delafield  vs.  See  Dela- 
fleld  vs.  Colden. 

Coleman  vs.  Tennessee.  U.  S. 
Sup.  Ct.  1878;  97  U.  S.  509, 
Field,  J.,  Vol.  I,      535,  542,  550 

Collectors  cases  against.  See 
Am.  Net  tt  Twine  Co.  vs. 
Worthington.  Bartram  vs. 
Robertson.  Cotzhausen  vs. 
Nazro.  Cross  vs.  Harrison 
{San  Francisco  Case). 
Criukshank  vs.  Bidwell  {The 


TABLE   OF   CASES. 


liii 


Page 

Tea  Act  Case).  The  Con- 
queror (Fassett —  Vanderbilt 
Yacht  Case).  De  Lima  vs. 
Bidwell  (Porto  Rico  Insular 
CaSf.).  Edt/e  vs.  Robertson. 
Field  vs.  Clark.  Flendny  vs. 
Parje  (Tainpico  Duty  Case). 
Hadden  vs.  The  Collector. 
Hartranft,  Collector,  vs.  Wieg- 
man.  Head  Money  Cases. 
Hilton  vs.  Merritt.  Lusctlles 
vs.  Bidwell.  Nethercliff  vs. 
Robertson.  North  German 
Lloyd  S.  S.  Co.  vs.  Hedden ; 
Same  vs.  Marjone.  Oldfield 
vs.  Marriott  [Portuguese  Ton- 
nage Case).  Powers  vs. 
Barney.  Powers  vs.  Comly 
(Opium  Case).  Ropes  vs. 
Clinch.  Stairs  vs.  Peaslee. 
Sturijes  vs.  The  Collector. 
Taylor  vs.  Morton.  Whitney 
vs.  Robertson. 

Colunibia,  Bank  of,  vs.  Okely. 
See  Bank  of  Columbia  vs. 
Okely. 

Comeg'ys  vs.  Vasse,  U.  S. 
Sup.  Ct.  1828;  1  Peters,  193, 
Stoby,  J.,  Vol.  II,  237,  285 

286,  292,  293,  294,  297,  299,  313 

Comly,  Powers  vs.  See  Powers 
vs.  Comly. 

Commission,  Interstate  Com- 
merce, Branson  vs.  See 
Bronson  vs.  Interstate  Com- 
merce Co)n  mission. 

Commonwealth  vs.  Hawes. 
Ct.  of  A  pp.  Kentucky,-  1878; 
13  Bush,  697,  Lindsay,  Ch. 
J.,  Vol.  Jl.  271,  273 

Commonwealth,  Pervear  vs. 
See  Pervear  vs.  Common- 
wealtli. 

Commonwealth  vs.  Sheafe. 
Sup.  Ct.  Mass.  1810;  6  Mass. 
441,  Per  Curiam,  Vol.  II,         47 

Compagrnie  Francaise  vs. 
State  Board  of  Health.  Sup. 
Ct.  Louisiana,  I8!t9;  51  La. 
Ann.  645;  NlCHOLS,  Ch.  J, 
Vol.  II,  50 

Compagnie  Generale  &c.  Peo- 
ple vs.  See  People  vs.  Com- 
pagnie Generale  &c. 

Comstock,  McGregor  vs.  See 
McGregor  vs.  Comstock. 

Concord,  The  Ship.  See  Ship 
Concord,  The. 

Concordia,  Police  Jury  of, 
Davis    vs.       See     Davis    vs. 


Page 

Police  Jury  of  Concordia. 

Conklin,  People  vs.  See  Peo- 
jjle  vs.  Conklin. 

Connolly,  Jhirbier\s.  See  Bar- 
bier  vs.  Co)rnolly. 

Connor  vs.  United  States.  U. 
S.  ct.  Claims,  1884;  19  Ct. 
Clms.  675,  KiCHARDSON,  J., 
Vol.  II,  223 

Conqueror,  The.  U.  S.  Sup. 
Ct.  1896;  166  U.  S,  110, 
Brown,  J.,  Vol.  I,  547,  548 

Consular  Courts  Case.  See  In 
re  Ross. 

Cook  vs.  Hart.  U.  S.  Sup.  Ct. 
1892;  UG  U.  S.  183,  BroWN, 
J.,  Vol.  II,  262 

Cook  vs.  United  States.  U.  S. 
Sup.  Ct.  1891;  138  U.  S.  157; 
Harlan,  J.,  Vol.  I,  542,  549 

Vol.  II,  143 

Cook,  United  Stales  vs.  See 
United  States  vs.  Cook. 

Cooley  vs.  Board  of  Port 
Wardens.  U,  S.  Sup.  Ct. 
1851;  12  Howard,  299,  Cur- 
tis, J.,  Vol.  I,  542,  546 

Cooper,  In  re.     U.  S.  Sup.  Ct. 
1891;    138    U.     S.    404,    also 
1892;  143    U.    S.    472,   Ful- 
ler, Ch.  J.,  Vol.  I,  536,  543 
552,  557 
Vol.  II,  361 

Corcoran,  Judson  vs.  See  Jud- 
son  vs.  Corcoran. 

Corfleld  vs.  Coryell.  U.  S. 
Cir  Ct.  3d  Circ.  1823;  2  Wash. 
C.  C.  371,  Washington,  J., 
Vol.  II,  318 

Cornet  vs.  Winton's  Lessee. 
Sup.  Ct.  Tennessee,  1826;  2 
Yei-ger,  143,  Catron  and 
Haywood,  J  J.,  Vol.  II,  45 

Corrunes,  The  Bella.  See  Bello 
Corrunes,  The. 

Cortes,  In  re  Lniz  Oteiza  y. 
U.  S.Sup.  Ct.  1890;  136  U.  S. 
330,  Blatchford,  .J.,  affirm- 
ing In  re  Cortes.  U.  S.  Cir. 
Ct.  S.  D.  N.  y.  1890;  42  Fed. 
Rep.  47,  Lacombe,  J.,  Vol.  II, 

98,  105,  262 

Coryell,  Corfleld  vs.  See  Car- 
field  vs.  Coryell. 

Cosgrove  vs.  Winney,  U.  S. 
Sup.  Ct.  1,S99:  174  "U.  S.  64, 
Fuller,  Ch.  ,).,  Vol.  II,  274 

Cotzhausen  vs.  Nazro.  U.  S. 
Sup.  Ct.  1882;  107  U.  S.  215, 
Miller,  J.,  Vol.  II,  360 


liv 


TABLE  OF   CASES. 


Page 
County,  F)-aukUn,  d-c,  Pennock 

vs.     See  PeiDiock  vs.  Frank- 
lin County. 
County,  Miami,   ifcc,  Peck   vs. 

See    Pt'vk  vs.  Miami    County 

d-c. 
County  of  Wilson  vs.  National 

liauk.     U.  S.  Sup.  Ct.  I8b0; 

lu:i   U.   S.  770,    Woods,   J., 

Vol.  I,  540 

County    of   Yankton,  National 

Bank     vs.       See      Natioiial 

Bank  vs.  County  of  Yankton. 
Coursalt,  Butilh  vs.     See  Dutilh 

vs.  Coursalt. 
Cox,  In  re.     La  1000;  cited  at 

leiiuili    iu    Mr.    Beck's  brief 

in  Neely  case,  Duggax,  J., 

otherwise       not       reported, 

Vol.  I,  178 

Coxe   a)id  King,  Unitpcl  States 

vs.     See    United    States  vs. 

King  and  Coxe. 
Coxt'^s  Lfssee,    Mcllvaine    vs. 

See     Mcllvaine    vs.     Coxe''s 

Lessee. 
Coxe,  Mackey  vs.     See  Mackey 

vs.  Coxe, 
Coxe,  Wylie  vs.    See    Wylie  vs. 

Coxe. 
Coy,  Ex  parte.    U.  S.  Dist.  Ct. 

Texas,    1887;  o2   Fed.    Rep. 

911.     TiJiNEK,  J.,  Vol.  II,       273 
Craig  vs.  Radford.    U.  S.  Sup. 

Ct.    1818;    3    Wheaton,    .594, 

Washington,    J.,    Vol.    II, 

14,  179 
Crandall  vs.   Nevada.    U.  S. 

Sup.  Ct.  1867:  U  Wallace,  35, 

MiLLEK,  .J.,  Vol.  I,      53,  536,  546 
Crane   vs.   Eeeder.     Sup.   Ct. 

Michigan,  1872 :  25  Mich.  303, 

Cooi-EY,  J.,  Vol.  II.  169 

Crommelin,     Minter     vs.     See 

Minfer  vs.  Crommelin. 
Cross,  In  re.     U.  S.  Dist.  Ct. 

Nor.  Car.  1890;  43  Fed.  Rep. 

517,  SEYMOt'R.  J..  Vol.  II.  263,  279 
Cross    vs.    Harrison.    U.    S. 

Sup.    Ct.    1853;  16    Hovrard, 
164,  Wayxe,  J.,  Vol.  L  168,  190 
470,  474,  484,  492.  498,  499 
539,    .550,  554,  564 

Vol.  II,  165 

Crossman  vs.  United  States. 
(Hawaiian    Insular    ease.) 
U.  S.  Sup.  Ct.  1901:  182  U.S. 
221,  Brown,  J.,  Vol.  L  119,  123 
126,  462,  469,  506 
Crow  Dog,  Ex  parte.    U.  S. 


Page 

Sup.  Ct.  1883;  109  U.  S.  556, 
Matthews,  J.,  Vol.  I,  562 

Vol.  II,  227,  230 

Crownenshield,  Sturgisvs.  See 
Sturgis  vs.  Crownenshield. 

Croxoley,  Soon  Hing  vs.  See 
Soon  lling  vs.  Cnnvley. 

Cruikshank  vs.  Bidwell.  U. 
S.  Sup.  Ct.  1900,  176  U.  S.  73, 
Fuller,  Ch.  J.,  Vol.  I,    121,  545 

Cruikshank,  United  States  vs. 
See  U)dted  States  vs.  Cruik- 
shank. 

Crutclier  vs.  Kentucky.  U.  S. 
Sup.  Ct.  1891;  141  U.  S.  47, 
Bradley,  J..  Vol.  I,        542,  546 

Cuniniings  vs.  Missouri.  U.  S. 
Sup.  Ct.  1866;  4  Wallace,  277, 
Field,  J.,  Vol.  I,         62,  549,  555 

Curtis,  People  ex  rel.  Barlow 
vs.    See  People  &c.  vs.  Curtis. 

Cusliing  vs.  United  States. 
U.  S.  ct.  of  Claims,  1886;  22 
Ct.  of  Claims,  1,  Davis,  J., 
Vol.  II,  284,  304 

Cutler  vs.  Dibble.  U.  S. 
Sup.  Ct.  1858;  21  Howard, 
366,  Grier,  J.,  afiSrming 
same  case,  cited  as  N.  Y.  vs. 
Dibble,  N.  Y.  Ct.  of  Appeals, 
1857;  16N.  Y.20.3,Broavn,  J., 
Vol.  II,  48,  213 

Dainese's  case,  U.  S.  Ct.  of 
Claims,  1879,  15  Ct.  of 
Cl:iims,  64,  Davis,  J., 
Vol.  II,  335 

Dainese  vs.  Hale.  U.  S.  Sup. 
Ct.  1875,  91  U.  S.  13,  Brad- 
ley, J.,  affirming  same  case, 
Sup.  Ct.  Dist.  of  Col.  1873,  1 
Mc Arthur,  86,  Caetter,  J., 
Vol.  II,  3;«,  341 

Danforth  vs.  Thomas.  U.  S. 
Sup.  Ct.  1816;  1  Wheaton, 
155,  Todd,  J.,  Vol.  IL  213 

Dartmouth  College  vs.  Wood- 
ward. U.  S.  Sup.  Ct.  1819; 
4  Wheaton,  518,  Marshall, 
Ch.  J.,  Vol.  I,       62,  540,  542,  549 

D'Auterive  vs.  United  States. 
U.  S.  Sup.  ct.  1879;  101  U.S. 
700,  Clifford,  J.,  Vol.  II,      154 

D'Auterive,  United  States  vs. 
See  United  States  vs.  B^Aute- 
rire. 

Davidson  vs.  McKibben.    Ct. 

of   Com.   Pleas,   2   Ceo.   IV, 
1821 ;  3  Broderip  &  Bingham, 
112,  Dallas,  Ch.  J.,  Vol.  I,   548 
1  Davis  vs.  Packard.    U.  S.  Sup. 


TABLE   OF   CASES. 


Iv 


Page 

Ct.     1833;   7     Peters,     276, 
Thompson,  J.,  Vol.  II,  336 

Davis  vs.  Police  Jury  of  Con- 
cordia. U.  S.  Sup.  Ct.  1850; 
9  Howard,  280,  Wayne,  J., 
Vol.  I,  552,  561 

Vol.  II,  84,  128,  146,  165 

Davis,  Tennessee  vs.  See  Ten- 
nessee vs.  Davis. 

Davis,  United  States  vs.  See 
United  States  vs.  Davis. 

Dawson's  Lessee  vs.  Grodfrey. 
U.  S.  Sup.  Cc.  1808;  4  Oraacli, 
321;  Johnson,  J.,  Vol.  II,  16,  167 

Deacon,  Short  vs.  See  Short 
vs.  Deacon, 

Debs,  In  re.  U.  S.  Sup.  Ct. 
1895,  158  U.  S.  564,  Bkewer, 
J.,  Vol.  I,  536,  545 

Decker,  Jackson  vs.  See  Jack- 
son vs.  Decker. 

De  Criacomo,  In  re.  U.  S.  Cir. 
Ct.  S.  D.  N.  Y.  1874,  12 
Blatchford,  391,  Blatch- 
FORD,  J.,  Vol.  II,  263 

De  Haven,  Town  \s,.  See  Tot«?i 
vs.  De  Haven. 

De  La  Croix  vs.  Chamberlain. 
U.  S.  Sup.  Ct.  1827;  12 
Wheatou,  599,  Trimble,  J. 
Vol.  II,  184,  185 

Delafleld  vs.  Colden.  N.  Y. 
Ct.  of  Chancery,  1828, 1  Paige, 
139,  Walworth,  Chanc, 
Vol.  II,  297 

Delassus  vs.  United  States. 
U.  S.  Sup.  Ct.  1835,  9  Peters, 
117,  Marshall,  Ch.  J. 
Vol.  r,  537,  554,  555 

Vol.  II,  147,  165,  179 

De  Lima  vs.  Bid  well  (Insular 
case).    U.  S.  Sup.  Ct.  1901, 
182    U.    S.    1,     Bkown,    J., 
Vol.  I,      28,  60,  118,  119,  120,  121 
122,  123,  125,  126,  461,  467,  468 
469,  475,  476,  495,  499,  502,  506 
507,  564,  566,  567,  573,  576,  584 
Vol.  II,  67,  180 

De  Longchamps,  Eespuhlica  vs. 
See  Respublica  vs.  DeLong- 
cha')iips. 

Denn  ex  dem.  Fisher  vs. 
Harndeu.  U.  S.  Cir.  Ct., 
2d  Circ,  1812;  1  Paine,  C.  C. 
R.  55,  LiviN&STON,  J.,  Vol. 
II,  38,  61,  146 

Denis,  Burthe  vs.  See  Burthe 
vs.  Denis. 

Dennick  vs.  R.  R.  Co.    U.  S. 

Sup.   Ct.   1880;  103  U.  S.  11, 
Miller,  J.,  Vol.  I,  155 


Page 
Dennick  vs.   United   States. 

U.  S.  Sup.  Ct.  1880;  103  I  J.  S. 

11,  MiLLEIi,  J.,  Vol.  I,  155 

Denniston,  Fellows  vs.  See 
Fellows  vs.  Denniston. 

Desbois'  Case.  Sup.  Ct.  La. 
1812;  1  Martin  K  S.  285,  2 
Martin  O.  S.  185,  Martin,  J., 
Vol.  II,  169 

Detroit,  Attorney  General  vs. 
See  Attorney  General  vs.  De- 
troit. 

DeUriarte,  Castro  vs.  See 
Castro  vs.  DeUriarte. 

Diamond  Rings.  See  Fourteen 
Diamond  Rings. 

Dibble,  Cutler  vs.  See  Cutler 
vs.  Dibble. 

Dickert  &  M.  Sulphur  Co.,  Utah 
M.  &  Mfg.  Co.  vs.  See  Utah 
&c.  Co.  vs.  Dickert  <fcc.  Co. 

Dickson,  United  States  vs.  See 
United  States  vs.  Dickson. 

Diekelinan,  United  States  vs. 
See  United  Slates  vs.  Diekel- 
man. 

Dillin,  Hamilton  vs.  See  Hamil- 
ton vs.  Dillin. 

Direct  Tax  (Carriages)  Case. 
See  Htjlton  vs.  Brown. 

District  of  Col.,  Barnes  vs. 
See  Barnes  vs.  Dist.  of  Col. 

District  of  Columbia,  Gibbons 
vs.  See  Gibbons  vs.  Dist.  of 
Col. 

District  of  Columhia,  Mattingly 
vs.  See  Mattingly  vs.  Dist, 
of  Col. 

District  of  Columbia,  Metropoli- 
tan R.  R.  Co.  vs.  See  Metro- 
politan R.  R.  Co.  vs.  Dist.  of 
Col. 

Dixon  vs.  United  States.  U.  S. 
Cir.  Ct.  Virginia,  1811;  1 
Brockenbrougii,  177,  Mar- 
shall, Ch.  J.,  Vol.  I,  548 

Doane,  Penhallow  vs.  See  Pen- 
hallnw  vs.  Doane. 

Dochrel  vs.  Hillmer.  Sup.  Ct. 
Iowa,  1897;  102  Iowa,  169, 
Ladd,  J.,  Vol.  II,  44 

Dock  Co.,  Atlantic,  Griswold 
vs.  See  Griswold  vs.  Atlantic 
Dock  Co. 

Dods^e   vs.    Woolsey.     U.    S. 
Sup.    Ct.    1855;   18  Howard, 
331,  Wayne,  J.,  Vol.  I,  536,  544 
Vol.  II,  361 

Doe  vs.  Braden.  See  Clark  vs. 
lira  den. 

Doe  vs.  Wilson.    U.  S.  Sup. 


Ivi 


TABLE   OF   CASES. 


Page 
Ct.    1859;    23   Howard,   457, 
Catron,  J, 

DoDtini/uez,  Botiller  vs.  See 
Botiller  vs.  Dominguez. 

Donnelly,  Watson  vs.  See 
]\'atso7i  vs.  Donnelli/. 

Douovau  vs.  Pitcher  et  als. 
Ahi.  Sup.  Ct.  1874;  53  Ala. 
411,  Judge,  J.,  Vol.  I,  474 

Donoyer,  iState  {No.  Dak.)  Ex 
rel.  Tompton  vs.  See  State 
&c.  vs.  Donoijer. 

Dooley,  Smith  &  Co.  vs.  Uni- 
ted States  JN'o.  1,  (lu.sular 
Ca.ses,  Porto  Rico  War 
Tariff).  U.  S.  Sup.  Ct.  1901; 
182  U.  S.  222,  Brown,  J., 
Vol.  I,  119,  124,  127,  461,  469,  495 
496,  501,  502,  569,  571,  573.  576 
Vol.  II,  129 

Dooley,  Smith  &  Co.  vs.  United 
States  No.  2,  ( Insular  case, 
Porto  Rico  Duties).  U.  S. 
Sup.  Ct.  1901;  183  or  184 
U.  S.,  Brown,  J.,  Vol.  L,  119 
124,  461,  469,  495,  496,  501,  569 
Vol.  II,  129 

Dos  Santos,  Ex  parte.  U.  S. 
Cir.  Ct.  Virginia,  1835;  2 
Brockenbrough,  493;  Fed. 
Cas.  4016,  Barbour,  J.,  Vol. 
II,  255 

Douglas,  United  States  vs.  See 
United  States  vs.  Douglas. 

Dow  vs.  Johnson.  U.  S.  Sup. 
Ct,  1879;  100  U.  S.  158, 
Field,  J.,  Vol.  I,  536,  550 

Vol.  II,  24 

Dow,  Maxioellvs.  See  Maxwell 
vs.  Doio. 

Downes  vs.  Bidwell   (Insular 
case,  Foraker  Act).    U.  S. 
Sup.  Ct.  1901;  182  U.  S.  244, 
Brown,  J.,  Vol.   I,    28,  60,  119 
123,  127,  443,  461,  469,  474,  476 
482,  489,  491,  495,  501,  566,  569 
572,  573,  576,  577,  578 
Vol.  II,  4,  24,  124,  283 

Draper  vs.  United  States.  U. 
S.  Su)).  Ct.  ISDC;  1(;4  U.  S. 
240,  White,  ,T,  Vol.  II,  86 

Dow's  Ca.se.  Sup.  Ct.  Penna. 
1851;  18  Penn.  St.  37,  Gib- 
son, C.  J.,  Vol.  II,  278 

Dred  Scott  case.  See  Scott  vs. 
SrmdJ'ord. 

Dugan,  In  re.  U.  S.  Dist.  Ct. 
Mass.  1874;  2  Lowell,  367, 
Lowell,  J.,  Fed.  Cas.  4120. 
Vol.  II,  404 

Dnncan    vs.   Navassa    Phos- 


Page 
phate    Co.    U.  S.   Sup.   Ct. 
1891;  137  U.  S.  647,  Gray,  J., 
Vol.  I,  60 

Duulop  vs.  Alexander.  U.  S. 
Cir.  Ct.  Dist.  of  Col.,  1808;  1 
Cranch  C.  C.  498,  Vol.  II,  17 

Dupont,  Shanks  vs.  See 
Shanks  vs.  Dupont. 

Duryee  vs.  Mayor  of  New 
York.  N.  Y.  Ct.  of  App. 
1884;  96  N.  Y.  477,  Kuger, 
Cli.  J.,  Vol.  I,  70 

Dutilh  vs.  Coursault.  U.  S. 
Cir.  Ct.  Dist.  of  Col.  1837; 
5  Crancli  C.  C.  349,  Cranch 
Ch.    J.,  Vol.  II,  297 

Early,  Postmaster  General  vs. 
See  Postmaster  General  vs. 
Early. 

Eastern  Baud  of  Cherokees 
vs.  United  Slates.  U.  S.  Ct. 
of  (;laims,  1885;  20  Ct.  of 
Clms.  449,  Richardson,  .T., 
Vol.  II,  214,  235 

Eaton,  Hamilton  vs.  See  Ham- 
ilton vs.  Eaton. 

Eaton,  United  States  vs.  See 
United  States  vs.  Eaton. 

Eckhart,  Chouteau  vs.  See 
Chouteau  vs.  Eckhart. 

Edioards,  Huahes  vs.  See 
Hughes  vs.  Edwards. 

Edye  vs.  Robertson.  (Head 
Money  Cases).  U.  S.  Sup. 
Ct.  1884;  112  U.  S.  580,  Mil- 
ler, J.,  affirming  U.  S.  Cir. 
Ct.  S.  D.  X.  Y.  1883;  21 
Blatchford,  460,  Blatch- 
ford,  J.,  Vol.  I,  455 

Vol.  II,  82,  86,  97,  106 

Eells  vs.  Ross.  U.  S.  Cir.  Ct. 
App.  9th  Circ.  1894;  64  Fed. 
Rep.  417,  McKenna,  J.,  Vol. 
II,  214,  225 

Eells,  Eoss  vs.  See  Boss  vs. 
Eells. 

Eisner,  Saxlehner  vs.  See  Sax- 
lehner  vs.  Eisner. 

Ekiu,  Nishimura,  vs.  United 
States.  U.  S.  Sup.  Ct.  1891; 
142  U.  S.  651,  Gray,  J.,  Vol. 
I,  55,  190,  536,  552 

Vol.  II,  97,  104,  109,  121,  122,  259 

Elam,  Foster  and.  vs.  Nelson. 
See  Foster  and  Elam  vs.  Nel- 
son. 

Eleventh  Amendment  case.  See 
State  of  Georgia  vs.  Brails- 
ford. 

Eliza  and  Cargo,  The.    U.  S. 


TABLE   OF   CASES. 


Ivii 


Page 
Cir.  Ct.  Mass.  1813;  2  Galli- 
son,  4,  Stouy,  J.,  Vol.  I,         548 

Elk  vs.  Wilkins.  U.  S.  Sup. 
Ct.  1884;  112  U.  S.  94,  GRAY, 
J.,  Vol.  I,  557,  558,  502 

Vol.  II,  173,  174,  231 

EUzey,  Hepburn  vs.  See  Hej)- 
burn  vs.  EUzey. 

Elphinstone  vs.  Bedreechuud, 
Privy  CouiKnl,  1830;  1 
Kaapp's  Privy  Council 
Cases,  316,  Vattel,  365,  3  Phil- 
liinore's  lut.  Law^,  505,  Lokd 
Tentkkukn^,  Vol.  I,  551 

Elwine  Krepliu,  The.  U.  S. 
Dist.  Ct.  E.  D.  N.  Y.  1870;  4 
Benedict,  413;  Fed.  Cas.  No. 
4426,  Benedict,  J. ;  reversed 
U.  S.  Cir.  Ct.  1871,  9  Blatch- 
ford,  438,  Woodruff,  J., 
and  see  Ex  parte  Newman. 
U.  S.  Sup.  Ct.  1872;  14  Wal- 
lace, 152,  ClilFFORD,  J.,  Vol. 

11.  238,  330,  333,  342 

Ely,  Baldwin  vs.    See  Baldwin 

vs.  Ely. 
Emerson     vs.     Hall.     IT.   S. 

Sup.  Ct.  1839;  13  Peters,  409, 

McLean,  J..  Vol.  II,  297 

Emert  vs.   Missouri.     U.   S. 

Sup.  Ct.  1894;  156  U.  S.  296, 

Cray,  J.,   Vol.  I,  542 

Endleman  vs.  United  States. 

U.  S.  Cir.  Ct.  App.  9th  Cir. 

1898;  57  U.  S.  App.  1,  86  Fed. 

Rep.  456,  Morrow,  J.,  Vol. 

I,  537,  539 

Englebrecht,    Clinton  vs.      See 

Clinton  vs.  Englebrecht. 
Enf/lish  vs.  Sailors''  Snug  Har- 
bor.    See  Ingles  vs.    Sailors, 

&c. 
Errol,  Coe  vs.   See  Cos  vs.  Er- 

rol. 
Erwin  vs.  United  States.    U. 

S.   Sup.   Ct.    1878;  97    U.    S. 

392,  Field,  J.,  Vol.  II,  293 

Eslava,  Mobile  vs.     See  Mobile 

vs.  Estava. 
Evans,  Wagoner  vs.     See  Wag- 

onpr  vs.  Evans. 
Exchange  (Schooner)  vs.  Mc- 

Fadden.   U.  S.  Sup.  Ct.  1812; 

7   Cranch,  116,    Marshall, 

Ch.  J.,  Vol.  I,  .536,  551,  552 

Executors     of    Porterfield    vs. 

Clark.        See       Porterfield'' s 

Exrs.  vs.  Clark. 
Executors  of  Robouam,    Robo- 

uam's  Heirs  vs.     See  Robo- 


Page 
uam^s  Heirs  vs.    Robouam's 
Exrs. 

Ex  parte  and  In  re  ;  See  names 
of  parties,  but  see  also;  Chi- 
nese names ;  Indian  names  ; 
Extradition,  Ex  parte  ;  hire 
generally. 

Export  Tax  (  War  Revenue 
Case).  See  Fairbank  \s.  Uni- 
ted States,  Dooley  vs.  United 
States,  No.  2. 

Extradition,  Ex  parte ;  In  re 
Baruch  ;  In  re  Behrendt ;  In 
re  Breen ;  In  re  British 
Prisoners  ;  In  re  Cannon  ;  In 
re  Carrier ;  In  re  Charles- 
tovni;  In  re  Cortes;  In  re  Cox; 
In  re  Cross  ;  In  re  Be  Giaco- 
mo  ;  Ex  parte  Bos  Santos ; 
Bow''s  Case;  In  re  Bugan;  In 
re  Ezeta  ;  In  re  Farez  ;  In  re 
Ferrelle  ;  Ex  parte  Foss  ;  In 
re  Fowler;  In  re  HeUbronn ; 
In  re  Henrich;  In  re  Herris 
or  Herres  ;  Ex  parte  Hibbs ; 
Ex  parte  Holmes;  In  re 
Kaine  ;  In  re  Kelley  { Peter)  ; 
In  re  Kelly  ;  In  re  Ker  ( Ker 
vs.  Illinois)  ;  In  re  Kron- 
jaker;  Ex  parte  Lane  ;  Lopez 
&  Saltier'' s  Case  ;  In  re  Lud- 
wig  ;  Ex  parte  McCabe ; 
In  re  MacDonnell ;  In  re 
McPhun ;  In  re  Metzgar 
or  Metzger  ;  In  re  Miller ; 
In  re  Mineaxi ;  Mnller^s 
Case  ;  In  re  Neely  (Neely  vs. 
Henkel) ;  In  re  Neioman;  In 
re  Orpen  ;  In  re  Palmer  ;  In 
re  Pedersnn  ;  In  re  Rahrer  ; 
In  re  Reinitz  ;  In  re  Risch ; 
In  re  Roderiguez ;  Ex  parte 
Ross ;  In  re  Roth ;  In  re 
Rowe.  ;  Ex  parte  Sternaman  ; 
In  re  Thomas  ;  Ex  parte  Van 
Aerman ;  In  re  Vandervel- 
pen;  Ex  parte  Van  Hoven  (2 
Cases);  In  re  Veremaitre ; 
In  re  Wadge ;  In  re  Wohl ; 
In  re  Washburn;  In  re  Wei- 
(/and ;   Wildenhus's  Case. 

Ezeta,  In  re.  U.  S.  Dist.  Ct. 
Cala.  1894;  62  Fed.  Rep, 
964  and  972,  Morrow,  J., 
Vol.  II,  266,  268 

Fabrigas,  Mostyn  vs.  See 
MoKtyn  vs.  Fabrigas. 

Factory  Tobacco,  United  States 
vs.  See  United  States  vs. 
Tobacco  Factory. 


Iviii 


TABLE   OF  CASES. 


Page 
Fairbank  vs.  United  States. 

U.  S.  Sup.  Ct.  lUOl;  181 
U.  S.  283,  BUKWEK,  J., 
Vol.  I,    126,  546,  548,  571,  575,  578 

Fairfax  vs.  Hunter.  U.  S. 
Sup.  Ct.  1813;  7  Crancli, 
603,     Story,     J.,     Vol.    II, 

1,  13,  14,  43,  246 

Fama,  The.     High  Ct.  of  Ad- 
miralty,   1804;    5    Robinson, 
106,  SiK  Wm.  Scott,  Vol.  I,  554 
Vol.  II,  161,  166,  470 

Famous  Smith  vs.  United 
States.  U.  S.  Sup.  Ct. 
1894;  151U.S.50,  Bkown,  J., 
Vol.  II,  229 

Farez,  In  re.  (3  Cases ).  U.  S. 
Dist.  Ct.  S.  D.  N.  Y.  1869  and 
1870;  7  Blatchford,  34,  345, 
491,  Fed.  Cas.  4644,  4645, 
4646;  Blatchford  J.,  and 
Woodruff,  J.,  Vol.  II,  263 

Farmers  Loan  &  Trust  Co., 
Pollock  vs.  See  Pollock  vs. 
Farmers  L.  &  T.  Co. 

Fasseti  Collector,  <tc.,  Case. 
See  Conqueror,  The. 

Fellows  vs.  Blacksmith.  U. 
S.  Sup.  Ct.  1856.  19  Howard, 
366,  Nelson,  J.,  Vol.  I,  140 

Vol.  II,  207,  212,  216,  229 

Fellows,  Blacksmith  vs.  See 
Blacksmith  vs.  Felloivs. 

Fellows  vs.  Deuniston.  N.  Y. 
Ct.  of  Appeals,  1861  ;  23 
N.  Y.  420,  Denio,  .J.,  Vol.  II,    36 

Feol  vs.  Salamoni.  U.  S. 
Dist.  Ct.  Georgia,  1886;  29 
Fed.  Rep.  534,  Speer,  J., 
Vol.  II,  331,  333 

Ferguson,  Boclley  vs.  See 
Bodley  vs.  Ferguson. 

Ferreira,  United  States  vs. 
Unitfid  States  vs.  I'erreira. 

Ferrelle,  In  re.  U.  S.  Cir. 
Ct.  S.  D.  N.  Y.  1886;  28  Fed, 
Rep.  878,  Brown,  J., 
Vol.  II,  264 

Fichera's  Case.  U.  S.  Ct.  of 
Claims,  1873;  9  Ct.  of  Clms. 
254:  XoTT,  J.,  Vol.  I,  5.50 

Field  vs.  Clark.  U.  S.  Sup. 
Ct.  1892;  143  U.  S.  649, 
Harlan,  J.,  Vol.  I,  481,  540,  544 

546 
Vol.  II,  3,  144,  .335,  .354,  361 

Files.  Pollard'' s  Lessee  vs.     See 

Pollard^s  Lessee  vs.  Files. 
Finley,  Buikner  vs.     See  Buck- 
ner  vs.  Finley. 


Page 

Fi.iher,  Am.  Pub.  Co.  vs.  See 
Am.  Pub.  Co.  vs.  Fisher. 

Fisher  Assignee,  United  States 
vs.  See  United  States  vs. 
Fisher,  Assignee. 

Fi.'iher,  JIamden  vs.  See  Ham- 
den  vs.  Fisher. 

Fisher,  Utah  &  N.  By.  Co.  vs. 
See  Utah  &c.  Co.  vs.  Fisher. 

Fisheries,  In  re  Provincial. 
See  Provincial  Fisheries,  In 
re. 

Fleming'  vs.  Page.    U.  S.  Sup. 

Ct.    1850;    9    Howard,    603, 

Taney,  Ch.  J.,  Vol.  I,        25,  137 

167,  168,  171,  173,  190,  470,  474 

484,  491,  498,  499,  .501,  537 

539,  548,  551,  552 

Fletcher  vs.  Peck.  U.  S.  Sup. 
Ct.  1810;  6  Craucli,  87,  Mar- 
shall, Ch.  J.,  Vol.  I,  540 

Fletcher  vs.  Rhode  Island.  See 
License  Cases. 

Flint,  United  States  vs.  See 
United  States  vs.  Flint. 

Florida  Case,  The.  See  Amer- 
ican Ins.  Co.  vs.  Canter. 

Flournoy  &c.  Co.  vs.  Beck. 
U.  S.  Cir.  Ct.  App.  8th  Cir. 
1894;  65  Fed.  Rep.  30, 
Thayer,  J,,  (Appeal  dis- 
missed. U.  S.  Sup.  Ct.  1896; 
163  U.  S.  686),  Vol.  II,  216 

Flournoy  &c.  United  States  vs. 
See  United  States  vs.  Flour- 
n  oy. 

Fong    Yue    Ting    vs.   United 
States   (Chinese   Exclu.sion 
case).     U.  S.  Sup.   ct.   1893; 
149    U.    S.   698,    Gray,   J., 
Vol.  I,    16,  28,  55,  1.39,  141,  190 
479,  535,  552.  557,  558,  560 
Vol.  II,    84,  86,  103,  107,  109,  110 
111,  121,  122,  259 

Forsoket,  The.  U.  S.  Dist. 
(t.  Penua.  1801;  1  Peters 
Adm.  Rep.  197,  Peters,  .1., 
Vol.  II,  330 

Fort  Leavenworth  R.  R.  Co. 
vs.  Lowe.  U.  S.  Sup.  Ct. 
1885;  114  U.  S.  525,  Field, 
J.,  Vol.  II,  194 

Forty-three  Gallons  of 
Brandy,  In  re.  U.  S.  Cir. 
Ct.  Minn.  1882;  11  Fed.  Rep. 
47,  McCrary,  J. 

Forty-three  Gallons  of  Whiskey, 
United  States  \s.  See  United. 
States  vs.  Forty-three  tfcc. 

Foss,    Ex    parte.     Sup.    Ct. 


TABLE   OF  CASES. 


lix 


Page 
Gala.  1894;  102  Gala.  347,  De- 
Haven,  J.,  V(.l.  II,  268 

Foster,  United  States  vs.  See 
United  States  vs.  Foster. 

Foster  and  Elam  vs.  Neilsou. 
U.     S.     Sup.     Ct.     1829;     2 
Peters,       253,      Marshali,, 
Ch.  J.,  Vol.  I,    140,  431,  471,  537 
544,  553,  554,  555,  558,  560,  5lJ7 
Vol.   II,    63,   66,  67,   79,  84,   106 
146,  147,  165,  .324,  361 

Fourteen  Diamond  Ring's* 
Pepke  Claimant  (Insular 
case).  U.  S.  Sup.  Ct.,  de- 
cided Dec.  2,  1901;  Brown, 
J.,  Vol.  I,  119,  122,  461,  466,  467 
563,  573,  576 

Fouyerg-ne  vs.  City  of  New 
Orleans.  U.  S.  Sup.  Ct. 
1855;  18  Howard,  470,  Camp- 
bell, J.,  Vol.  II,  163 

Fowler,  In  re  George.  U.  S. 
Dist.  Ct,  S.  D.  N.  Y.  1880; 
18  Blatcliford,  430,  Blatcu- 
FORD,  J.,  Vol.  II,  264 

Fox  vs.  Southack.  Sup.  Ct. 
Mass.  1815;  12  Mass.  143, 
Jackson,  J.,  Vol.  II,  15 

Franklin  County  Commr''s, 
Pennock  vs.  See  Pennock 
vs.  Franklin  County  <£c. 

Franks,  Baldwin  vs.  See 
Baldwin  vs.  Franks. 

Frederickson  vs.  State  of 
Louisiana.  U.  S.  Sup.  Ct. 
1859;  23  Howard,  445,  Camp- 
bell, J.,  Vol.  II,  41,  52 

Freehold  Co.  ( United  States), 
Tanieling  vs.  See  Tameling 
vs.  United  States  Freehold  cfcc. 

Freeman,  Chy  Lung  vs.  See 
Chy  Lung  vs.  Freeman. 

Frelinghuysen  vs.  Key.  U.  S. 
Sup.  Ct.  1884;  110  U.  S.  63, 
Waite,  Cb,  J.,  Vol.  I,  544, 

558,  560 
Vol.  II,  .309,  361 

Fremont  vs.  United  States. 
U.  S.  Sup.  Ct.  1854;  17  How- 
ard 542,  Taney,  Ch.  J., 
Vol.  II,  152 

French  Republic  vs.  Schultze. 
See  Republic  Francaise  vs. 
Schultz. 

French  Spoliation  Claims  Cases. 
See  Brig  Venus,  The.  Brig 
William,  The.  dishing  vs. 
United  States.  Gray  vs.  Uni- 
ted States.  Hooper  vs.  Uni- 
ted States.   Leghorn  Seizures, 


Page 

The.  Schooner  Henry  and 
Qustavus,  The.  Ship  Apollo, 
The.  Shii>  Betsey,  The.  Ship 
Concord,  The.  Ship  Ganges, 
'The.  Ship  Jane,  The.  Ship 
Jidiana^  'the.  Ship  Parkman, 
The.  Ship  Star,  The.  Ship 
Turn,  The.  United  States  vs. 
Gilliat. 

Frevell  vs.  Bache.  U.  S.  Sup. 
Ct.  1840;  14  Peters,  95, 
Taney,  Ch.  J..  Vol.  II,  297 

Friend  vs.  United  States. 
U.  S.  ct.  of  Claims,  1894; 
29  Gt.  of  Claims,  425, 
Richardson,  Ch.  J.,  Vol.  II,  223 

Friends,  The  Three.  See  Three 
Friends,  The. 

Frost  vs.  Wenie.  U.  S.  Sup. 
Ct.  189o;  157  U".  S.  46,  Har- 
lan, J.,  Vol.  II,  223 

Fugitive  Slave  Laio  Case.  See 
Prigg  vs.  Pennsylvania. 

Gaillard,  Harcourt  vs.  See 
Harcourt  vs.  Gaillard. 

Galdy,  Blankard  vs.  See 
Blankard  vs.  Galdy. 

Ganges,  The  Ship.  See  Ship 
Ganges,  The. 

Garcia  vs.  Lee.  U.  S.  Sup. 
Ct.  1838;  12  Peters,  511, 
Taney,  Ch.  J.,  Vol.  I,  .537 

544,  554,  555,  558 
Vol.  II,  Ifio,  216,  361 

Garrison  vs.  United  States. 
U.  S.  ct.  of  Claims,  1895;  30 
Ct.  of  Claims,  272,  Peelle, 
J.,  Vol.  II,  223 

Gay,  Thomas  vs.  See  Thomas 
vs.    Gay. 

Gee  Fook  Sing  vs.  United 
States.  U.  S.  Cir.  Ct.  App. 
9th  Cir.  1892;  7  U.  S.  App. 
27,  Handford,  J.,  Vol.  II,     118 

Gee  Fook  Sing  vs.  United  States. 
See  Lem  Hing  Dun  vs.  Uni- 
ted States. 

Gee  Hop,  In  re.  U.  S.  Dist. 
Ct.  Gala.  1895;  71  Fed.  Rep. 
274,  Morrow,  J.,  Vol.  II,         111 

Gelston  vs.  Hoyt.  N.  Y.  Gt. 
of  Errors,  1816;  13  Johnson, 
561,  Kent,   Chan.,  Vol.  II,     358 

Genessee  Chief,  The.  U.  S. 
Sup.  Ct.  1851;  12  Howard, 
443,  Taney,  Gh.  J.,  Vol.  I, 

541,  545 

Geofroy  vs.  Riggs.  U.  S.  Sup. 
Ct.  1890;  133  U.  S.  258,  Field, 
J.,  Vol.  I,  190,  493,  540,  552,  553 


TABLE   OF   CASES. 


Page 

555,  557,  558,  501 

Vol.  II,    1,  23,  43,  45,  54,  237,  238 

321 

Georgia  vs.  Stanton.  U.  S. 
Sup.  Ct.  18t)7;  G  Wallace,  50, 
Nelson,  J.,  Vol.  I,  536,  542 

§44, 551 
Vol.  II,  361 

Georgia,  State  of,  vs.  Brailsford. 
See  State  of  Georgia  vs. 
Brailsfo7-d. 

Georgia,  Lascelles  vs.  See 
Lasctlles  vs.  Georgia. 

Georgia,  State  ot,  Cherokee  Na- 
tion vs.  See  Cherokee  Nation 
vs.  State  of  Georgia. 

Georgia,  State  of,  Chisholm  vs. 
See  Chisholm  vs.  Georgia. 

Georgia,  Worcester  vs.  See 
Worcester  vs.  Georgia. 

Gerke,  People  { Cala. )  vs.  See 
People  vs.  Gerke. 

Giacomo,  In  re,  Ue.  See  De 
Giacomo,  In  re. 

Gihbes,  WilUaniS  vs.  See  Wil- 
Ua)iis  vs.  Gihbes. 

Gibbons  vs.  Dist.  of  Colum- 
bia. U.  S.  Sup.  Ct.  1886; 
116  U.  S.  404,  Gkay,  J., 
Vol.  I,  540 

Gibbons  vs.  Ogden.  U.  S. 
Sup.  Ct.  1824;  9  Wheaton,  1, 
Mahshaix,   Ch.  J.,   Vol.  I, 

44,  478,  536,  541,  542,  546,  581 
Vol.  II,  349 

Gibbons  vs.  United  States. 
U.  S.  Sup.  Ct.  1868;  8  Wal- 
lace, 269,  MiLLEE.  J.,  Vol.  I, 

ry.\a.  .542,  546,  550 

Gill  vs.  Oliver's  Executors. 
U.  S.  Sup.  Ct.  1J^:>0:  11  How. 
.529,  Grier.  .1..  Vol.  II,  297 

Gillespie  vs.  Winberg.  X.  Y. 
Ct.  of  Com.  Pleiis,  1872;  4 
Daly,  318;  Daly,  Ch.  J., 
Vol.  I.  542 

Gilliat,  United  States  vs.  See 
United  Stntps  vs.  Gilliat. 

Gilman  vs.  Philadelphia.    U. 

5.  Sup.   Ct.  1805;  3  Wallace, 
713,     SWAYNE,     J.,     Vol.     I, 

536,  542 
Glass  vs.  The  Sloop  Betsey. 
U.  S.  Sup.  Ct.  1794;  3  Dallas, 

6.  Per  Curiam,  Vol.  II,  330,  345 
Godfrey  vs.  Beardsley.    U.  S. 

Cir.  Ct.  Indiana,  1841;  2  Mc- 
Lean, 412,  Fed.  Cas.  5497, 
McLean,  J.,  Vol.  II,  217 

Godfrey,   Dawson''s  Lessee  vs. 


Page 

See  Dofjosoji's  Lessee  vs.  God- 

fr<y. 
Godson    vs.    United     States. 

Sup.  Ct.  Oklahania,  1898,  7 
Okla.  117,  BuuFOKD,  Ch.  J., 
Vol.  I,  545 

Goetze  vs.  United  States  (In- 
sular   case}.      U.    S.   Sup. 
Ct.     1901;     182    U.    S.    221, 
Brown,   J.,  reversing  s.    c. 
U.  S.  Cir.  Ct.   S.   D.    N.   Y. 
1900, 103  Fed.  Kep.  72,  Town- 
send,  J.,  Vol.  I,  25,  119,  120 
122,  123,  133,  166,  461 
465,  468,  469,  495,  496,  506 
Vol.  II,  167 

Gold/rank,  Baldioin  vs.  See 
Baldicin  vs.  Goldfrank. 

Goldman,  Jordan  vs.  See  Jor- 
dan vs.  Goldman. 

Golubchick,  The.  High  Ct. 
of  Adm.  (English)  1840;  1 
W.  Robinson,  143,  Dr.  Lush- 
INGTON,  .J.,  Vol.  II,  330 

Gon-Shay-Ee,  In  re.     U.  S. 

Sup.  Ct.  18b9:  130  U.  S.  343, 
Miller,  J.,  Vol.  II,  230 

Good  vs.  Martin.  U.  S.  Sup. 
Ct.  1877,  95  U.  S.  90,  Clif- 
ford, J.,  Vol.  I,  545,  547 

Goodfellow  vs.  Mucliey.  U.  S. 
Cir.  Ct.  Kansas,  1881;  1  Mc- 
Crary,  238,  Foster,  J., 
Vol. 'II,  217 

Gordon  vs.  Kerr.     U.  S.  Cir. 
Ct.    Penna.     1806;    1    Wash. 
C.    C.    322;    Fed.    Cas.    5611, 
Washington,  J.,  Vol.  I,         278 
Vol.  II,  .     15,  38,  47,  146 

Gordon,    Eespuhlica    vs.      See 
Respublica  vs.  Gordon. 
■  Gospel    Society.      See    Society 
for    the   Propagation   of  the 
Gospel. 

Graham,  Strader  vs.  See  Stra- 
der  vs.  Graham. 

Grandjean,  Slidell  vs.  See  Sli- 
dell  vs.  Grandjean. 

Gratiot,  United  States  vs.  See 
United  States  vs.  Gratiot. 

Grapeshot,  The.  U.  S.  Sup, 
Ct.  1869;  9  Wallace,  129, 
Chase,  Ch.  J.,  Vol.  I,      500,  545 

551 

Gray  vs.  Coffmaa.  U.  S.  Cir. 
Ct.  Kansas.  1874;  3  Dillon, 
393,  Fed.  Cas.  5714,  Dil- 
lon, J..  Vol.  II,  217 

Gray  vs.  United  States.  U.  S. 
Ct.  of  Claims,  1886;  21  Ct.  of 


TABLE   OF   CASES. 


Ixi 


Page 
Claims,     340,     Davis,     J., 
Vol.  II,  284 

Great   Western  Iiis.   Co.  vs. 
Uuited  States.     U.  S.  Sup. 
Ct.  1884;  112  U.  S.  19;^,  Mil- 
ler, J.,  Vol.  I,  544,  555,  558,  560 
Vol.  II,  288,  3(51 

Greenman,  Juilliard  vs.  See 
Juilliard  vs.  Greenman. 

Greneaux,  Prevost  vs.  See  Pre- 
vo.st  vs.  Greneaux. 

Grima,  Mager  vs.  See  Mayer 
vs.  Grima. 

Grinwold,  Hepburn  vs.  See 
Hepburn  vs.  Gristoolil. 

Griswold  vs.  Atlantic  Dock 
Co.  N.  Y.  Sup.  Ct.  1855; 
21  Barbour,  225,  Stkong,  J., 
Vol.  I,  542,  558,  560 

Crrisar  vs.  McDowell.  U.  S. 
Sup.  Ct.  1867;  6^ Wallace,  363, 
Field,  J.;  affirming  Same 
Case,  U.  S.  Cir.  Ct.  Cala. 
1866;  4  Sawyer,  597,  Fed. 
Cas.  5832,  Field,  J.,  Vol.  II, 

146,  165 

Groover,  Coffee  vs.  See  Coffee 
vs.  Groover. 

Giie  Liiti  (Mrs),  United  States 
vs.  See  United  States  vs.  Gue 
Lim  (Mrs,), 

Guiyot,  Hilton  vs.  See  Hilton 
vs.  Guiyot. 

Gustavus,  The  Schooner  Henry 
and.  See  Schooner  Henry 
and  Gitstavits. 

Guthrie  vs.  Hall.  Dist.  Ct. 
Oklahoma,  1891;  1  Okla.  454, 
Seat,  J,,  Vol.  II,  221 

Habana,  The  Paquette.  See 
Paquette  Habana,  The. 

Hadden  vs.  Collector,  The. 
U.  S.  Sup.  Ct.  1866;  5  Wal- 
lace, 107,  Field,  J.,  Vol.  II,     73 

Hagan,  Pollard  vs.  See  Pol- 
lard vs.  Haijan. 

Hale,  Dainese  vs.  See  Dainese 
vs.  Hale. 

Hall,  Campbell  vs.  See  Camp- 
bell vs.  Hall. 

Hall,  Emerson  vs.  See  Emer- 
son vs.  H(dl. 

Hall,  Guthrie  vs.  See  Guthrie 
vs.  Hall. 

Hall  vs.  Patterson.  U.  S. 
Cir.  Ct.  New  Jersey,  1891; 
45  Fed.  Rep.  352,  Gkeen,  J., 
Vol.  II,  275 

Hallet  vs.  Hunt.  Sup.  Ct. 
Alabama,  1845;  7  Ala.  882, 
COLLIEK,  Ch,  J.,  Vol.  I,     470,  554 


Page 

Hamilton  vs.   Dillin.     U.  S. 

Sup.  Ct.  1874;  21  Wallace,  73, 
Bkadley,  J.,  Vol.  I,        536,  551 

Hamilton  vs.  Eaton.  U.  S. 
Cir.  Ct.  Nor.  Car.  1792;  1 
Hughes,  249;  Fed.  Cas.  5980, 
Ellsworth,  Ch.  J.,  Sit- 
GREAVES,  J.,  Vol.  II,  13 

Hanes,  Langdeau  vs.  See  Lang- 
deau  vs.  Hanes. 

Happersett,  Minor  vs.  See 
Minor  vs.  Happersett. 

Harcourt  vs.  Gaillard.  U.S. 
Sup.  Ct.  1827;  12  VVbeaton, 
523,  Johnson,  J.,  Vol.  I,  238 

Hardy,  Holden  vs.  See  Holden 
vs.  Hardy. 

Harkness  vs.  Hyde.  XT.  S. 
Sup.  Ct.  1878;  98  U.  S.  476, 
Field,  J.,  Vol.  II,  229 

Harmony,  Mitchell  vs.  See 
Mitchell  vs.  Harmony. 

Harnden,  Denn  ex  dem.  Fisher 
vs.  See  Denn  ex  dem.  Fisher 
vs.  Harnden. 

Harnden  vs.  Fisher.  U.  S. 
Sup.  Ct.  1816;  1  Wheaton, 
300,  Marshall,  Ch.  J.,  re- 
versing Fisher  vs.  Harnden, 
1  Paine,  C.  C.  55,  Living- 
ston, J.,  Vol.  II.     15,  61,  62,  179 

Harnden,  Fisher  vs.  See  Fish- 
er vs.  Harnden. 

Harrisburg,  The.  U.  S.  Sup. 
Ct.  1886;  119  U.  S.  199, 
Waite,  Ch.  J.,  Vol.  I,  155 

Harrison,  Cross  vs.  See  Cross 
vs.  Harrison. 

Harrison,  Kelly  vs.  See  Kelly 
vs.  Harrison. 

Hart,  Cook  vs.  See  Cook  vs. 
Hart. 

Hartland,  Society  for  Propaga- 
tion of  the  Gospel  vs.  See 
Society  (fee,  vs.  Hartland. 

Hartranft  vs.  Wiegman.  U. 
S.  Sup.  Ct.  1887;  121  U.  S. 
609,  Blatchford,  J.,  Vol.  1,  547 

Harwood,  Clarke  vs.  See 
Clarke  vs.  Harwood. 

Haskins  vs.  United  States.  See 
Brig  William,  The. 

Hathaway,  United  States  vs. 
See  United  States  vs.  Hatha- 
loay. 

Hauenstein  vs.  Lynhan.  U. 
S.  Sup.  Ct.  1879;  100  U.  S. 
483,    Swayne,   J.,   Vol.    II, 

1,  20,  21,  43,  44,  54,  .321,  349 

Havana,  The  Barque.  See  Bar- 
que Havana,  The. 


Ixii 


TABLE  OF  CASES. 


Page 

Uai-en  De,  Town  vs.  See 
Town  vs.  De  Haven. 

Haver  vs.  Yaker.     U.  S.  Sup. 
Ct.      1809;     <J    Wallace,     32, 
Davis,  J,  (same  as  Jecker 
vs.  Magee),  Vol.  I,    125,  497,  555 
558,  561 
Vol.  II,  56,  127,  129,  146 

Haicniian  Insular  Case.  See 
Crossinan  vs.  UniU'd  States. 

Hawaii  &e.  Lewis  vs.  Hee  Lewis 
vs.  Hawaii  &c. 

Hawaii  tfic.  Peacock  vs.  See 
Peacock  vs.  Hawaii. 

Hawes,  Commonwealth  vs.  See 
Commonwealth  vs.  Hawes. 

Hays,  Ridgway  vs.  See  Ridg- 
icay  vs.  Hays. 

Hayward,  United  States  vs. 
See  United  States  vs.  Hay- 
ward. 

Head  Money   Cases.     U.    S. 
Sup,  Ct.  1«84;  112  U.  S.  580, 
Bl.\tchford,   J.,    (same   as 
Edje   vs.   Robertsou),  Vol. 
I,  455,  471,  491,  544,  546,  552,  555 
557,  558,  560,  561,  .567 
Vol.  II,     63,  "77,  82,  83,  86,  96,  97 
106,  145,  183,  361 

Heard  vs.  Bradford.  Sup.  Ct. 
Mass.  1808;  4  Masss.  326,  Sedg- 
wick, J.,  Vol.  II,  297 

Heard  vs.  Stiirges.  See  Wil- 
liams vs.  Heard. 

Heard,  Wlllianis  vs.  See  Wil- 
liams vs.  Heard. 

Hedden,  North  German  Lloyd 
S.  S.  vs.  See  North  Ger. 
&c.  vs.  Hedden. 

Heilhrouu,  lu  re.  U.  S.  Dt.  Ct. 
S.  D.  N.  Y.  1854:  Fed.  Cas. 
6323,  Ingersoll,  J.,  Vol.  II,  404 

Heirs  of  Pollard  vs.  Kihhe.  See 
Pollard's  Heirs  vs.  Kihhe. 

Heirs  of  Robouam  vs.  Exrs.  of 
Rnbouam.  See  Robouam''  s 
Heirs  vs.  Robouam''s  KrVs. 

Heirs  of  Yeaker  vs.  Heirs  of 
Yeaker.  See  Ye(tker's  Heirs 
vs.  Yeaker''s  Heirs. 

Heist,  Norman  vs.  See  Nor- 
man vs.  Heist. 

Henderson  vs.  Mayor  of  New 
York  (Passenger  cases).  U. 
S.  Sup.  Ct.  1875;  92  U.  S.  259, 
Miller,  J.,  Vol.  II,  50 

Henderson  vs.  Tennessee.  U. 
S.  Sup.  Ct.  18.50;  10 Howard, 
311,  Taney,  Ch.  J.,  Vol.  II,   217 

Henfleld's   Case.     U.  S.   Cir. 


Page 

Ct.  Penna.  1793;  Fed.  Cas. 
6360,  Jay,  Ch.  J.,  Wilson, 
IiiEDELL,  Peters,  JJ., 
Vol.  II,  144 

Henkel,  Neely  vs.  See  Neely 
vs.  Henkel. 

Hennick,  Stoutenbergh  vs.  See 
Stoutenbergh  vs.  Hennick. 

Henricli,  In  re.  U.  S.  Dist. 
Ct.  S.  D.  N.  Y.  1867;  5  Blatch- 
ford,  414;  Fed.  Cas.  6369, 
Shipman,  J.,  Vol.  II,  264 

Henry  and  G  istavus,  The 
Schooner.  See  Schooner  Hen- 
ry and  Gitstaviis. 

Hepbnrn    vs.   Ellzey.     U.   S. 
Sup.  Ct.  1805;  2  Cianch.  445, 
Marshall,  Ch,  J.,  Vol.  I,        27 
540,  557 

Hepburn  vs.  Griswold  (Legal 
Tender  Case).  U.  S.  Sup.  ct. 
1869;  8  Wallace,  603,  Chase, 
Ch.  J.,  Vol.  I,  62.  536,  541 

Herman  vs.  New  Orleans  &c. 
R.  R.  Co.  Sup.  Ct.  Louisi- 
ana, 1856;  11  La  Ann.  5,  Mer- 
rick, Ch.  J.,  Vol.  I,  155 

Hero,  The  Liverpool.  See  Liv- 
erpool Hero.  The. 

Herris  (or  Herres)  In  re.  U. 
S.  Dist.  Ct.  Minn.  1887;  33 
Fed.  Rep.  583,  Bkewer,  J., 
reversing  s.  c.  32  Fed.  Rep. 
583.  Nelson,  J.,  Vol.  II,  264 

Hibbs,  Ex  parte.  U.  S.  Dist. 
Ct.  Oregon,  1886;  26  Fed.  Rep. 
421,  Deady,  J..  Vol.  II,  264,  271 

Higginson  vs.  Mein.  U.  S. 
Sup.  Ct.  1808;  4  Cranch,  415, 
Marshall,  Ch.  ,J.,  Vol.  II,       12 

Higiieras  vs.  United  States. 
U.  S.  Sup.  Ct.  1804;  5  Wal- 
lace, 827,  Clifford,  J., 
Vol.  II,  165 

Hill  vs.  United  States.  U.  S. 
Sup.  Ct.  1893;  149  U.  S.  593, 
Gray,  J.,  Vol.  I,  550 

Hill,  United  States  vs.  See 
United  States  vs.  Hill. 

Hillmer,  Doeherel  vs.  See  Doeh- 
erel  vs.  Hillmer. 

Hilton  vs.  Brown.  See  Hylton 
vs.  Brown. 

Hilton  vs.  Guiyot.  U,  S. 
Sup.  Ct.  1895;  159  U.  S.  113, 
Gray,  J.,  Vol.  II,  98,  304 

Hilton  vs.  Merritt  ( Collector). 
U.  S.  Sup.  Ct.  1884;  110  U. 
S.  97,  Woods,  J.,  Vol.  II,  98 

Hilton,    Ware  vs.     See    Wave 


TABLE   OF   CASES. 


Ixiii 


vs.  Rylton. 

Himely,  Rose  vs.  See  Rose  vs. 
Himelij. 

Hltz,  Keyser  vs.  See  Keyset- 
vs.  Hitz. 

Iloag,  Orser  vs.  See  Orser  vs. 
Hoar/. 

Ho-Ali-Kow  vs.  Nunau  (Chin- 
ese Queue  Case).  U.  S.  Cir. 
Ct.  Gala.  1879;  5  Savryer,  552, 
Field,  J.,  Vol.  II,  1,  29,  31 

Uoboken  Co.,  Murrai/  vs.  See 
Murray  vs.  Uoboken  Co. 

Hodgson,  Orr  vs.  See  Orr  vs. 
Hodgson. 

Hof,  Capital  Traction  Co.  vs. 
See  Capital  Traction  Co.  vs. 
Hof. 

Ho  King:,  In  re.  U.  S.  Dist. 
Ct.  Oregon,  1883;  14  Fed. 
Rep.  724;  8  Sawyer,  4.38, 
Deady,  J.,  Vol.  II,  115 

Holbrook  vs.  United  States. 
U.  S.  Ct.  of  Claims,  1884;  21 
Ct.  Clms.  434,  Davis,  J., 
Vol.  II,  284 

Holden  vs.  Hardy.    U.  S.  Sup. 
Ct.    1898;     169    U.    S.    366, 
Brown,  J.,  Vol.  I,     537,  539,  554 
Vol.  II,  163 

Holden  vs.  Joy.  U.  S.  Sup. 
Ct.  1872;  17  Wallace,  211, 
Clifford,  J.,  Vol.  II,      204,  215 

218 

Holliday,  United  States  vs. 
See  United  States  vs.  Holli- 
day. 

Holmes  Ex  parte.  Sup.  Ct. 
Vermont,  1840;  12  Vt.  631, 
Williams,  Ch.  J.,  Vol.  II,      248 

270 

Holmes  vs.  Jenuison.      U.  S. 
Sup.  Ct.  1840;  14  Peters,  540, 
Taney,  Ch.  J.,    Vol.  I,  36,  37 
544,  558,  .561 
Vol.  II,  216,  248,  270,  361 

Holzai>feFs,  etc.,  Co.  vs. 
Ralitjen's,  etc.,  Co.  U.  S. 
Sup.  Ct.  1901;  22  Sup.  Ct. 
Reporter,  6.  See  183  U.  S. 
not  yet  published.  Peck- 
ham,  J.,  Vol.  II,  828 

Hooe  vs.  Jamieson.  U.  S.  Sup. 
Ct.  1897;  166  U.  S.  395,  Ful- 
ler, Ch.  J.,  Vol.  I,  27,  540 

Hooper  vs.  United  States. 
U.  S.  ct.  of  Claims,  1887;  22 
Ct.  of  Clms.  408,  Davis,  J., 
Vol.  II,  284 

Hop  Gee,  In  re.  See  Gee  Hop, 
In  re. 


Page 

Hope,  Callsen  vs.  See  Callsen 
vs.  Hope. 

Hopkins,  Yick  Wo  vs.  See 
Yick  Wo  vs.  Hopkins. 

Hopkirk  vs.  Bell.  U.  S.  Sup. 
Ct.  1806-7  (2  cases);  3 
Cranch,  453;  4  Cranch,  163, 
Per  curiam.  Vol.  II,  13,  19 

Hornbuckle  vs.  Toombs.  U.  S. 
Sup.  Ct.  1873;  18  Wallace, 
648,  Bradley,  J.,  Vol.  I,  539,  548 

Horner    vs.    United    States. 

U.  S.  Sup.  Ct.  1892;   143  U.  S. 
570,  Blatchford,  J. 

Houston,  Brown  vs.  See  Brown 
vs.  Houston. 

Howell,  United  States  vs.  See 
United  States  vs.  Howell. 

Hoyt,  Gelston  vs.  See  Gelston 
vs.  Hoyt. 

Hubbell  vs.  United  States.  See 
Caldera  cases. 

Hubg-h  vs.  New  Orleans  &c. 
R.  R.  Co.  Sup.  Ct.  Louisi- 
ana, 1851;  6  La.  Ann.  495. 
EusTis,  J.,  Vol.  I,  155 

Huckabee,  United  States  ex  rel, 
&c.  vs.  United  States  ex  rel. 
Lyon  vs.  Hurkabee. 

Hiiarhes  vs.  Edwards.  U.  S. 
Sup.  Ct.  1824;  9  Wheaton, 
489,  WASHiNaTON,  J.,  Vol. 
II,  14,  22,  43,  179 

Hunt,  Hallet  vs.  See  Hallet 
vs.  Hunt. 

Hunter,  Fairfax  vs.  See  Fair- 
fax vs.  Hunter. 

Hunter,  Martin  vs.  See  Mar- 
tin vs.  Hunter. 

Hunter,  United  States  vs.  See 
United  States  vs.  Hunter. 

Hunyadi  Janos  Water  cases. 
See  Saxlehner  vs.  Eisner. 

Hurlburt  L.  &  C.  Co.,  Trusrott 
vs.  See  Truscott  vs.  Hurl- 
burt L.  tfc  C.  Co. 

Hurtado  vs.  California.  U.  S. 
Sup.  Ct.  1884;  110  U.  S.  516; 
Matthews,  J.,  Vol.  I,  561 

Vol.  II,  163 

Hutchinson  vs.  Brock.  Sup. 
Ct.  Mass.  1814;  11  Mass.  119, 
Sewall,  Ch.  J.,  Vol.  II.  48 

Huus  vs.  N.  Y.  &  Porto  Rico 
S.  S.  Co.  (Insular  or  Porto 
Rico  Pilotage  Case).  U.  S. 
Sup.  Ct.  1901;  182  U.  S.  392, 
Brown,  J.,  Vol.  I,  119,  126,  127 
462,  503 

Hyde,  Harkness  vs.  See  Hark- 
ness  vs.  Hyde. 


Ixiv 


TABLE   OF   CASES. 


Page 

Hjlton  vs.  BroTTU.  U.  S.  Cir. 
Ct.  Peuua.  1«U(5;  1  Washing- 
ton C.  C.  298,  ;^43,  Fed.  Cas. 
6982,  Washington,  J.,  Vol. 
II,  13,  128,  146 

Hyltoii  vs.  Uiiite«l  States 
(Hyltou  Caniane  Case). 
U.  6.  Sup.  Ct.  ITUii;  3  Dallas, 
171,  Chase,  J.,  Vol.  II,  3 

Hylton,  Ware  vs.  See  ]Vare 
vs.  Hylton. 

Ice,  Mehlin  vs.  See  Mehlinvs. 
Ice. 

Idler,  Borgmeyer  vs.  See  Borg- 
meyer  vs.  Idler. 

Illiyiols,  lUinois  Cent.  B.  B.  Co. 
vs.  See  Illinois  Cent.  B.  B. 
Co.  vs.  Illinoifi. 

Illinois,  Moore  vs.  See  Moore 
vs.  Illinois. 

Illinois,  Munn  vs.  See  Munn 
vs.  Illinois. 

Illinois,  Spies  vs.  See  Sjnes 
vs.  Illinois. 

Illiuois  Cent.  R.  R.  Co.  vs. 
Illiuois.  U.  S.  Sup.  Ct. 
1892;  146  U.  S.  387,  Field, 
J.,  Vol.  II,  158,  314,  318 

Illinois,  State  of,  Ker,  vs.  See 
Ker  vs.  State  of  Illinois. 

Illinois  Steel  Co,  vs.  Biidzisz. 
IT.  S.  Cir.  Ct.  Wiscousiu, 
1897;  82  Fed.  Eep.  160,  Sea- 
man, J.,  Vol.  II,  225 

Illinois  Steel  Co.,  Budzisz  vs. 
See  Budzisz  vs.  Illinois  Steel 
Co. 

Income  Tax  Case.  See  Pol- 
lock vs.  Farmers  L.  &  T.  Co. 

Indemnity,  Cliinese  Cases.  See 
Caldera  Cases. 

Indian  names.  See  Alherty 
vs.  United  States  ;  In  re  Cap- 
tain Jack  ;  Cherokee  Nation 
Cases;  Ex  parte  Croio  Dog  ; 
Elk  vs.  Wilkins ;  Famous 
Smith  vs.'  United  States  ; 
Fellows  vs.  Blacksmith; 
Frost  vs.  Wenie ;  In  re  Gon- 
Shay-Ee  ;  Goodfellow  vs. 
Muckey  ;  Journeycake  vs. 
Cherokee  Nation;  Journey- 
cake  vs.  United  States  ;  Kan- 
sas Indians,  The  ;  In  re  May- 
field  ;  New  York  Indians, 
The;  New  York  Indians  vs. 
United  States ;  Nofire  vs. 
United  States ;  Pam-to-pee 
vs.  United  States ;  Potawata- 


Page 

mie  Indian  vs.  United 
States ;  In  re  Bace  Horse ; 
Sah  (j*((rt/i'.s  Ca.se ;  Seneca  Na- 
tion vs.  Christie ;  Ste{>hens 
vs.  Cherokee  Nation ;  Thebo 
vs.  Choctaiv  Tribe  of  Indians  ; 
United  States  vs.  Bridleman ; 
United  States  vs.  Joseph; 
United  States  vs.  Kagama ; 
United  States  vs.  Leathers; 
United  States  vs.  New  York 
Indians ;  United  States  vs. 
Pridgeon  ;  United  States  vs. 
Sturgeon ;  United  States  vs. 
Sunol ;  United  States  vs. 
Yellow  Sun  ;  IVard  vs.  Bace 
Horse  ;  M^estern  Cherokee  In- 
dians vs.  United  States. 

Indians,  The  New  York\s.  Uni- 
ted States.  See  Neiv  York 
Indians  vs.  United  States. 

Indians,  The  Kansas.  See 
Kansas  Indians,  The. 

Ingersoll,  Maiden  vs.  See 
Maiden  vs.  Ingersoll. 

Ing'lis  vs.  Sailors  Snug  Har- 
bor. U.  S.  Sup.  Ct.  1830; 
3  Peters,  99,  Thompson,  J., 
Vol.  I,  554,  555,  557,  558,  561 

Vol.  II,  169 

In  re.  See  nnrae  of  party.  But 
also  see  Chinese  names  ;  In- 
dian names ;  Extradition 
matters  ;  In  re  generally. 

In  re  generally.  See  Alter''s  Ap- 
peal;  In  re  Atocha ;  Lire 
Ayers;  In  re  Baez ;  In  re 
Baldwin  ;  Calvhi's  Case  ;  The 
Clinton  Bridge ;  In  re 
Cooper;  Dainese''s  Case; 
la  re  Debs;  Desbois''  Case; 
Ficliera's  Case ;  Henfield' s 
Case  ;  Jugiro,  In  re  Shibuya  ; 
In  re  Kemmler ;  KennetVs 
Petition;  Lopez  and  Sattler^s 
Case  ;  Lord  Bishop  of  Natal ; 
Ex  parte  McNeil ;  Ex  parte 
Milligan  ;  In  re  Neagle  ;  Ex 
parte  Ortiz  ;  In  re  Panzara  ; 
In  re  TubnrcJdo  Parrott ; 
In  re  Qnarles ;  Sah  Quah\s 
Case ;  Ex  parte  Scott ;  Ex 
parte  Siebold  ;  In  re  Tatsu  ; 
Ex  parte  Valandigham ;  In 
re  Vidal. 

Insular  Cases.  U.  S.  Sup.  Ct. 
1901;  182  U.  S.  1-,S92  (re- 
ferred to  collectively).  See 
also   separate   references  to 


TABLE  OF   CASES. 


Ixv 


Page 

individual  cases.     Vol.  I,     28,  GO 

62,  71,  117  to  127,  190,  443,  444 

Insular      Oases      Ai)i)endix, 

Vol.  I,  459  to  end  of   Vol.  I. 

Vol.    II,    4,   24,  67,   124,   129,  138 

149,  153,  165,  ]6(i,  167,  171 

178,  180,  283 

In><ular  Canes.  See  Armstrong 
vs.  United  Slates  (Porto 
Bico)  ;  Crassinan         vs. 

United  States  { Hawaii);  De 
Lima  vs.  BidwelL  ( Porto 
Rico  &  New  York  Dingley 
Act);  Dooley,  Sinilh  &  Co. 
vs.  United  States  (  Porto  Rico 
War  Tariff);  iJoolet/,  Smith 
&  Co.  vs.  United  States 
(Porto  Rico  Foraker  Act); 
Downes  vs.  Bidwell  {Porto 
Rico  and  New  York  Foraker 
Act);  Fourteen  Diamond 
Rings,  Pepke  Claimant 
(Pliillppine  Case) ;  Goetze  vs. 
United  State.^  ( Porto  Rico 
and  N.  Y.  Dingley  Act ;)  Huus 
vs.  N.  Y.  &  Porto  Riro  S.  S. 
Co.  (Porto  Rico  Pilotage 
Case). 

Insurance  Co.  vs.  Brame. 
U.  S.  Sup.  Ct.  1877;  95  U.  S. 
7.U,  Hunt,  J.,  Vol.  I,  155 

Ins.  Co.,  Am.,  Canter  vs.  See 
American  7//.s.  Co.  vs.  Canter. 

Ins.  Co.,  Great  Western,  Uni- 
ted States  vs.  See  Great 
Western  Ins.  Co.  vs.  United 
States. 

Ins.  Co.,  Albany  County,  Whiton 
vs.  See  W/ilton  vs.  Albany 
Couuty  Inn.  Co. 

Zn.s.  Co.,  New  York,  Varet  vs. 
See  Varet  vs.  N.    Y.  Ins.  Co. 

Ins.  Co.,  The  Phoenix,  Liver- 
pool Steam  Co.  vs.  See  Liver- 
pool Steam  Co.  vs.  Phoenix 
Ins.  Co. 

Ins.  Co.  (New  York),  Eouletxs. 
See  New  York  Ins.  Co.  vs. 
Roulet. 

Ins.  Co.,  Nor.  West.  Life  Co., 
Shtpard  vs.  See  Shepard  vs. 
Nor.   West.  L.  I.  Co. 

Ins.  Co.  Suffolk,  Williams,  vs. 
See  Williams  vs.  Suffolk,  Ins. 
Co. 

Interstate  Commerce  Comm. 
vs.  Brimson.  U.  S.  Sup.  Ct. 
1894;  154  U.  S.  447,  Hablan, 


Page 

J.,    (See   also  155   U.   S.  3), 

Vol.  I,  541,  542 

In  the  Matter  of.    See  In  re. 
Iowa,   Miners   Bank    vs.     See 

Miner's  Bank  vs.  Lnoa. 
Iowa,   Rhodes  vs.     See  Rhodes 

vs.  Iowa. 
Iowa   ( State  of]    vs.    Ross  and 

Mann.    See  State  of  Iowa  vs. 

Ross  and  Mann. 
Isaot'lla,      The     Amiable.     See 

Amiable  Isabella,,  The. 
Isham,   United  States  vs.     See 

United  states  vs.  Isham. 
Itata,  The.    U.  S.  Cir.  Ct.  App. 

18!)3,  5i)  Fed.  Kei>.  505,  Haw- 

LKY      and     Hanfokd,     JJ. 

Vol.  II,  3.59 

Jack,  In  re  Captain.     See  Cajy- 

tain  Jack,  In  re. 
Jackson   vs.   Beach.      N.   Y. 

Sup.  Ct.  1800;   1   Johns.  Cas. 

399,  Pek  Cukiam,  Vol.  II,         38 
Jackson,  Black  vs.     See  Black 

vs.  Jackson. 
Jackson,  Carver  vs.      See  Car- 
ver vs.  Jackson. 
Jackson  vs.  Clark,     U.  S.  Sup. 

Cc.     1818;     3     VVlieaton,     1, 

Marshall,  Cli.  J.,  Vol.  II,       17 
Jackson  vs.  Decker.      N.  Y. 

Sup.  Ct.  1814;  11  Johns.  (N. 

Y. )  418,  Spkncek,  J.,  Vol.  II,    37 
Jackson  vs.  Lunn.    N.  Y.  Sup. 

Ct.   1802;  3  Johns.  Cas.  109, 

Kent,  J.,  V.d.  II,  37,  38 

Jackson  vs.  Porter.    U.  S.  Cir. 

Ct.  N.  Y.  1825;  1  Paine,  457, 

Thompson,  J.,  Vol.  II,  207 

Jackson  vs   Wright.      N.  Y. 

Sup.  Ct.  1809;  4  Johns.  Cas. 

75,  Van  Ness,  J.,  Vol.  II,  37 

James    G.   Swan,    The,    United 

states  ys.     Hee  United  States 

vs.  The  James  G.  Swan. 
Jamieson,   Ilooe  vs.     See  Hooe 

vs.  Jamieson. 
Jane,  The  Ship.    See  Ship  Jane, 

The. 
Janis  vs.  United  States,    U. 

S.  Ct.  of  Claims,  1897;  32  Ct. 

of  Clms.  407,  NOTT,  Ch.  J.. 

Vol.  II,  223 

Jansen,  Talbot  vs.     See   Talbot 

vs.  Jansen. 
Jecker  vs.   Magee.      Same    as 

Haver  vs.  Yaker. 
Jecker  vs.  Moutg^omery.    U. 


Ix^ 


TABLE   OF   CASES. 


Page 
S.  Sup.  Ct.  1851;  13  Howard, 
498,  Taney,   Cli.  J.,  Vol.  I, 

500,  545,  551 

Jenks,  Patterson  vs.  See  Pat- 
terson vs.  Jenks. 

Jennison,  Holmes  vs.  See 
Holmes  vs.  Jennison. 

Johnson,  Dow  vs.  See  Dow  vs. 
Johnson. 

Johnson  vs.  Mcintosh.  U.  S. 
Sup.  Ct.  1823;  8  Wlieaton, 
543,  Marshall,  Ch.  J.,  Vol. 
I,  478,  538,  541,  562 

Vol.  II,  35,  121,  173 

195,  204,  20G,  207,  209,  210 

Johnston,  United  States  vs.  See 
United  States  vs.  Johnston. 

Joint  Traffic  Ass^n,  United 
States  vs.  See  United  States 
vs.  Joint  Traffic  Ass''n. 

Jones  vs.  McMaster.  U.  S. 
Sup.  Ct.  1857;  20  Howard,  8, 
Nelson,  J.,  Vol.  II,  168 

Jones  vs.  Meehan.  U.  S.  Sup. 
Ct.  1.S99;  175  U.  S.  1,  Gkay, 
J.,  affirmin<?  Meehan  vs. 
Jones,  U.  S.  Cir.  Ct.  Minn. 
79  Fed.  Eep.  997,  Xelson,  J., 
see  also  70  Fed.  Piep.  453. 
Vol.  II,  215 

Jones,  Morrill  vs.  See  Morrill 
vs.  Jones. 

Jones,  Scott  vs.  See  Scott  vs. 
Jones. 

Jones  vs.  United  States. 
(Xavassa  Islands  Case). 
U.  S.  Sup.  Ct.  1890;  137 
U.  S.  202,  Gkay,  J.,  Vol.  I, 

5,  15,  55,  60,  61,  78,  80,  140 

536,  538,  544,  552 

Vol.  II,  216,  ;358,  361 

Jones  vs.  Walker.  U.  S.  Cir. 
Ct.  Virginia,  1803;  2  Paine, 
688,    Jay,    Ch.    J.,    Vol.    II, 

13,  136 

Jordan  vs.  Goldman.  Dist. 
Ct.  Oklahoma,  1891;  1 
Okla.  Piep.  406,  Green,  J., 
Vol.  II,  221 

Jordan  vs.  Williams.  U.  S. 
Cir.  Ct.  Mass.  1851;  1  Curtis 
69,  Fed.  Cas.  7528,  Curtis,  J., 
Vol.  II,  333 

Joseph,  United  States  vs.  See 
United  States  vs.  Joseph. 

Josephs  vs.  United  States. 
U.  S.  ct.  of  Claims,  1865;  1 
Ct.  of  Clms.  197,  NoTT,  Ch. 
J.,  Vol.  II,  1.55 

Jost  vs.  Jost.     Sup.  Ct.  Dist. 


Page 
of  Col.  1882;  12  Mackey,  487, 
Cox,  J.,  Vol.  II,  21 

Journeycake  vs.  Cherokee 
Nation.  U.  S.  Ct.  of  Claims, 
1896;  31  Ct.  of  Clms.  140, 
NoTT,  J.,  Vol.  II,  221 

Journeycake,  Cherokee  Nation 
vs.  See  Cherokee  Nation  vs. 
Journeycake. 

Journeycake  vs.  United 
States.  U.  S.  Ct.  of  Claims, 
1893;  28  Ct.  of  Clms.  281, 
ISTOTT,  J.,  Vol.  II,  221 

Joy,  Hulden  vs.  See  Holden 
vs.  Joy. 

Joy,  Warner  vs.  Same  as 
Holden  vs.  Juy. 

Judson  vs.  Corcoran.  U.  S. 
Sup.  Ct.  1854;  17  Howard, 
612,  Catron,  J..  Vol.  II,         297 

Jng-iro,  In  re  Shibuya.  U.  S. 
Sup.  Ct.  1891;  140  U.  S.  291, 
Harlan,  J.,  Vol.  II,  56 

Juliana,  The  Ship.  See  Ship 
Jidiana,  The. 

Juilliard  vs.  Greenman 
( Leg-al  Tender  Case ).  U.  S. 
Sup.  Ct.  Itt84;  110  U.  S.  421, 
Gray,  J.,  Vol.  I,     16,  28,  62,  536 

Jung  Ah  Lung,  United  States 
vs.  See  United  States  vs. 
Jung  A  h  Lung. 

Jury,  Police  of  Concordia, 
Davis  vs.  See  Davis  vs. 
Police  Jury  of  Concordia. 

Justice,  Mahon  vs.  See  Ma- 
hon  vs.  Justice. 

Kaguma,  United  States  vs. 
See  United  States  vs.  Kag- 
ania. 

Kaine,  In  re.  U.  S.  Sup.  Ct. 
1852;  14  Howard,  103,  Cat- 
ron, J.,  for  opinions  below 
see  Fed.  Cas.  7597,  7597a, 
7598,  Kelson  and  Betts,  J  J., 
Vol.  II,  259 

Kaiser-Bruuer  Beck  &  Co., 
Bultz  Brewing  Co.  vs.  See 
Baltz  Brewing  Co.  vs. 
Kaiser  B.  &c. 

Kansas  Indians,  The.    U.  S. 
Sup.    Ct.    1866;    5    Wallace, 
737,  Davis,  J.,  Vol.  I,     544,  559 
560,  562 
Vol.  II,  214,  217,  229,  361 

Kecfe,      ilnited,     States     vs.      See 
United  States  vs.  CKeefe. 

Keene  vs.  McDonoug'li.  U. 
S.  Sup.  Ct.  1834;  8  Peters, 
308,  Thompson,  J.,  Vol.  I,  470,554 


TABLE   OF   CASES. 


Ixvii 


Page 

Kelley,  In  re.  U.  S.  Dist.  Ct. 
Miua.  1885;  25  Fed.  Kep. 
208,  Nelson,  J.,  and  1886; 
2()  Fed.  Rep.  852,  BiiEWi-iK, 
J.,  Vol.  II,  2G4 

Kelley,  In  re  Peter.  IT.  S. 
Dist.  Ct.  Mass.  18 ;4;  2  Low- 
ell, 339,  Fed.  Cas.  7655, 
Lowell,  J.,  Vol.  II,  404 

Kelly  vs.  Harrison.  N.  Y. 
Sup.  Ct.  1800;  -J,  Johns.  Cas. 
•JO,  Kent,  J.,  Yol.  TI,  194 

Kemmler,  In  re.  U.  S.  Sup. 
Ct.  1890;  136  U.  S.  436,  Ful- 
i.Kii,  Ch.  J.,  Vol.  I,  62,  549 

Vol.  II,  56 

Kendall    vs.    United    States. 
U.     S.     Sup.     Ct.     1838;     12 
Peters,  524,  Thompson,  J., 
Vol.  I,  540 

Kendall  vs.  United  States. 
U.  S.  Sup.  Ct.  1868;  7  Wal- 
lace, 113,  MiLLEK,  J.,  affirm- 
ing same  case,  1865,  1  U.  S. 
Ct.  of  Clms.  261,  Peck,  J., 
Vol.  II,  223 

Kennard  vs.  Louisiana.  U.  S. 
Slip.  ct.  1875;  92  U.  S.  480, 
Waite,  Ch.  J.,  Vol.  I,      540,  546 

Kennett  vs.  Chambers.    U.  S. 
Sup.  Ct.  1852;  14  Howard,  38, 
Taney,  Ch.  J.,  Vol.  I,      536,  544 
Vol.  II,  358,  361 

Kennett.,  Bryan  vs.  See  Bryan 
vs.  Keiniett. 

Kennett's  Petition.  N.  H. 
Sup.  Ct.  1851;  24  JST.  H.  139, 
Bell,  J.,  Vol.  I,  474 

Kenney,  Phila.  &  Reading  R.  R. 
Co.  vs.  See  Phila.  &  Read- 
ing R.  R.  Co.  vs.  Kenney. 

Kentucky,  Bank  of,  Briscoe  vs. 
See  Briscoe  vs.  Bank  of  Ken- 
tucky. 

Kentucky,  Commonwealth  of, 
Hawes  vs.  See  Hawes  vs. 
Commonwealth. 

Kentucky,  Crutcher  vs.  See 
Crutcher  vs.  Kentucky. 

Ker  vs.  State  of  Illinois. 
U.  S.  Sup.  Ct.  1886;  119  U.  S. 
436,  MiLLEB,  J.,  affirming 
Ex  parte  Ker.  U.  S.  Cir. 
Ct.  111.  1883;  18  Fed.  Rep. 
167,  Dbummond,  J.,  Vol.  II,  268 
270,  279 

Kerr,  Gordon  vs.  See  Gor- 
don vs.  Kerr. 

Key,  Frelinghuysen  vs.  See 
Frelinghuysen  vs.  Key. 


Page 
Keyser  vs.  Hitz.    U.  S.  Sup. 
Ct.     1890;    133     U.     S.     138, 

IlAKLAN,    J.,    Vol.     II,  216 

Kihbi',  Pollard^s  Heirs  vs.  See 
Pollard's  Heirs  vs.  Kibbe. 

Kilbourn  vs.  Thompson.  U.  S. 
Sup.  Ct.  1880;  103  U.  S.  168, 
MiLLEK,  J.,  Vol.  I,  536,542 

King  vs.  Parks.  N.  Y.  Sup. 
Ct.  1822;  19  Johns.  375, 
Spencer,  Ch.  J.,  Vol.  I,  548 

King  &  Coze,  United  States  vs. 
See  United  States  vs.  King  & 
Coxe. 

Kinkead  vs.  United  States. 
U.  S.  Sup.  Ct.  1893;  150 
U.  S.  483,  Brown,  J.,  affirm- 
ing same  case.  Court  of 
Claims,  1883;  18  Ct.  of  Clms. 
504,  Drake,  Ch.  J.,  and  24 
Ct.  of  Claims,  459,  Scofield, 
J.,  Vol.  II,  157,  301 

Knig-ht  vs.  United  States 
Land  Ass'n.  U.  S.  Sup. 
Ct.  1891;  142  U.  S.  161, 
Lamar,  J.,  Vol.  II,  158 

Knight,  United  States  vs.  See 
United  States  vs.  Knight. 

Knowlton  vs.  Moore  (War 
Revenue  inheritance  tax 
case).  U.  S.  Sup.  Ct.  1900; 
178  U.  S.  41,  White,  J., 
Vol.  I,  477,  478,  491,  540,  546,  580 

Knox  vs.  Lee  (Legal  Tender 
case).  U.  S.  Sup.  Ct.  1870; 
12  Wallace,  457,  Strong  and 
Bbadley,  JJ.,  Vol.  I,   54,  62,  536 

KrepUn,  The  Ehoine.  See  El- 
wine  Kreplin,  The. 

Krojanker,  In  re.  U.  S.  Cir, 
Ct.  S.  D.  N.  Y.  1890;  40  Fed. 
Rep.  482,  Lacombe,  J., 
Vol.  II,  264 

Kull  vs.  Kull.  N.  Y.  Sup.  Ct. 
Gen'l  Term,  1885;  37  Hun, 
476,  Davis,  J.,  Vol.  II,  38 

La  Ahra  Silver  Mng.  Co.  vs. 
United  States.     U.  S.  Sup. 
Ct.  1899;  175  U.  S.  423,  Har- 
lan, J.,  Vol.  I,  553,  555,  559,  560 
Vol.  II,  86,  302,  309 

La  Ahra  and  Weil  Cases.  See 
Frelinghuysen  vs.  Kei/. 

Labadi  vs.  United  States. 
U.  S.  Ct.  of  Claims,  1896;  31 
Ct.  of  Clms.  205,  Weldon,  J., 
Vol.  II,  223 

La  Chapelle,  United  States  vs. 
See  United  States  vs.  La 
Chapelle. 


Ixviii 


TABLE   OF  CASES. 


Page 
Lacroix    Fils    vs.    Sarrazin. 

U.  iS.  L'ir.  Ci.  Louisiaua,  lo>8;^; 

1.")   Fed.  Kep.  48'J;  4    Woods, 

174,  Pakukk,  J.,   Vol.  II,         320 
Ladiga  vs.  Roland.     U.  S.  Sup. 

CC.    1844;    -l    Howard,    581, 

Baldwin,  J.,  Vol.  II,  217 

LiKjraee,     Adriance     vs.      See 

Adriance  vs.  Lagrave. 
Ld'/rcice,   Bacharuch    vs.      See 

Baranvh  vs.  Layrave. 
Laird,  Stuart  vs.     See    Stuart 

vs.  Laird. 
Land   and  Mining   Companies. 

See    Astrazarati    vs.     Santa 

Eita  L.    &  M.  Co.     Cala.  & 

Ore.   Land  Co.  vs.    Worden. 

Flonrnuy    &c.    Co.  vs.  Beck. 

Kniijkt      vs.     United    States 

Land  Ass'n.     liio  Arrita  L. 

ft  C.   Co.  vs.  United  States. 

Talbot    vs.    Silver    Bow    Co. 

Tainelin;/  vs.   U.  S.  Freehold 

&  Em.  Co.    Truscott  vs.  Hurl- 

burt  L.  &  C.  Co. 
Land    Co.,    Cal.    &    Ore.,    vs. 

War  dm.      See    Cal.    &    Ore. 

Laud  Co.  vs.  Worden. 
Lane,  Ex  parte.     U.  S.  Dist. 

Ct.  Mich.    1881;  6  Fed.  Kep. 

:U,  Browx,  J.,  Vol.  II,  264 

Lane  vs.  Oregon.     U.  S.  Sup. 

(t.     1868;     7     Wallace,    71, 

Chase,     Ch.     J.,     Vol.    II, 

204,  536,  542 
Langdeau  vs.   Hanes.    U.   S. 

Sup.   Ct.   1874;    21    Wallace,  521 

Field,  J.,  Vol.  II,  104 
La    Ninfa,  The.     U.  S.    Dist. 

Ct.   Alaska,     1891;    49    Fed. 

Rep.    575,   BUGBEE,    J.,   and 

U.  S.  Cir.  Ct.  App.  9th  Cir. 

1890;  75  Fed.  Rep.  513.  Haw- 

LKY,  J.,  Vol.  II;  38,  83 

La     Bepublic     Francnise      vs. 

Srhulfz.     See  Eepnblic  Fran- 

ciiisp  vs.  Srhnlfz. 
Lark  and  Cargo,  The.    U.  S. 

Cir.   Ct.   Mass.    1812;  1  Gal- 

lison,  55.  Stoky.  J..  Vol.  I,      548 
Laseelles  vs.  Bidwell.     U.  S. 

Cir.  Ct.  S.  D.  N.  Y.  1900;  102 

Fed.  Rep.  1004,  Lacomue,  J., 
■      Vol.  I,  121,  545,  547 

Laseelles  vs.  Greorgia.    U.  S. 

Sup.  Ct.  1893;  148  U.  S.  537, 

Jackson,  J.,  Vol.  II,  404 

Lattimer  vs.  Poteet.    TJ.    S. 

Sup.  Ct.  184U;  14  Peters,  4, 

McLean,  J.,  Vol.  II,        214,  349 


Page 

Laundry,  Chine/te,  Case.  See 
('hi)tis('  Laundry  Case. 

Lau  Ow  Be>y,  In  re.  U.  S. 
Sup.  Ct.  1891;  141  U.  S.  583, 
Fuller,  Ch.  J.,  Vol.  I,  28 

Vol.  II,  98,  100,  102,  103 

Lau  Ow  Bew  vs.  United 
States.  U.  S.  Sup.  Ct.  1892; 
144  U.  S.  47,  Fulleb,  Ch.  J., 
Vol.  I,  28 

Vol.  II,  98,  100 

Laverty,  United  States  vs.  See 
United  States  vs.  Laverty. 

Lavery,  Buffalo  B.  &  P.  R.  R. 
Co.  vs.  See  BuSalo  R.  &  P. 
R.  R.  Co.  vs.  Lavery. 

Law  vs.  Thorudike.  Sup.  Ct. 
Mass.  1838;  20  Pickering,  (37 
Mass.)  317,  Shaw,  Ch.  J., 
Vol.  II,  297 

Laiorence,  United  States  vs. 
See  United  States  vs.  Laiv- 
rence. 

Lawson,  Bachman  vs.  See 
Bachman  vs.  Lawson. 

Lawton  vs.  Steele.  U.  S.  Sup. 
Ct.  1894;  1.V2  U.  S.  133, 
Brown,  J.,  Vol.  II,  314,  318,  319 

Leathers,  United  States  vs. 
See  United  States  vs.  Leath- 
ers. 

Leavenworth  L.  &  G.  R.  R. 
Co.  vs.  United  States.  U. 
S.  Sup.  Ct.  1875;  92  U.  S.  733, 
Davis,  J.,  Vol.  II,  223,  225 

Leavit  vs.  The  Shakespeare. 
U.  S.  Dist.  Ct.  Louisiana, 
1871;      Fed.    Cas.   8167,    Du- 

RELL,   J.,  Vol.  II,  331 

Le  Bris,  United  States  vs.     See 

United  States  vs.  Le  Bris. 
Lee,  Adnix.,  vs    Thonidike. 

Sup.  Ct.  Mass.  1841 ;  43  Mass. 

313,  Putnam,  J.,  Vol.  II,         297 
Lee  Choi  Chum,  Steamer  Spark. 

vs.     See   Steamer  Spark  vs. 

Lee  Choi  Chum. 
Lee,  Garcia  vs.     See  Garcia  vs. 

Lee. 
Lee,   Knox   vs.     See  Knox  vs. 

Lee. 
Lee,  Meier  vs.     See  Meier  vs. 

Lee. 
Lee,    United    States  vs.      See 

United  states  vs.  Lee. 
Legal  Tender  Cases.     Cited 

collectively.  Vol.  I,  536,  549,  551 
Legal  Tender  Cases.     See  Hep- 
burn vs.  Griswold.     Juilliard 

vs.  Grcenman.    Knox  vs.  Lee. 


TABLE   OF   CASES. 


Ixix 


Page 

Leghorn  Seizures,   The.    U. 

b.  Ct.  of  Claims,  1892;  27  Ct. 
of  Clms.  224,  Nott,  J., 
V..1.  II,  284 

Leig-hton  vs.  United  States. 
U.  S.  Sup.  Ct.  1894;  IGl  U. 
S.  291,  Brewek,  J.,  affirming 
U.  S.  Ct.  of  Claims,  1894;  29 
Ct.  of  Clms.  288,  Peelle,  J., 
Vol.  II,  223 

Leitensdorfer  vs.  Webb.  U.  S. 
Sup.  Ct.  18.i7;  20  Howard, 
176,  Daniel,  J.,  Vol.  I,  538 

539,  545,  551,  554 
Vol.  II,  161 

Le  Louis,  The.  High  Ct. 
Aflmr.  1817;  2  Dodson  Admr. 
210,  Sir  William  Scott, 
Vol.  II,  329 

Lem  Hing  Dun  vs.  United 
States.  U.  S.  Cir.  Ct.  App. 
9  Cir.  1892;  7  U.  S.  App.  31, 
Handfoud,  J.,  (also  Gee 
Fook  Sing  vs.  United  States. 
7  U.  S.  App.  27)  Vol.  II,  118 

Lem  Moon  Sing  vs.  United 
States.  U.  S.  Sup.  Ct.  1895; 
158  U.  S.  538,  Harlan,  J., 
Vol.  I,  28,  479,  555 

Vol.  II.  107,  109,  110,  259 

Leon  XIII,  The.  Ct.  of  Ap- 
peal (Euglish)  1883;  8  Pro- 
bate Div.  121,  Brett,  M,  R. 
Vol.  II,  330 

Leonard  vs.  Nye.  Sup.  Ct. 
M;iss.  1878;  125  Mass.  455, 
Gray,  Cli.  J.,  Vol.  IE,       292,  297 

Leong  Tick  Dew,  In  re.  U. 
S.  Cir.  Ct.  Cala.  1884;  10 
Savsryer,  38,  Sawyer,  J., 
Vol.  II,  116 

Lessee  of  Coxe,  Mcllvaine  vs. 
See  Mcllvaine  vs.  Coxe^s 
Lessee. 

Lessee  of  Daivson,  Godfrey  vs. 
See  Dawson's  Lessee  vs.  God- 
frei/. 

Lessee  of  Norwood,  Oivings  vs. 
See  Owings  vs.  Norwood^s 
Lessee. 

Lessee  of  Pollard  vs.  Files. 
See  Pollard'' s  Lessee  vs.  Files. 

Lessee  of  Winton,  Cornet  vs. 
See  Cornet  vs.  Winton's  Les- 
see. 

Lewis  vs.  Bell.  U.  S.  Sup. 
Ct.  1854;  17  Howard,  616, 
Grier,  J.,  Vol.  II,  297 

Lewis  vs.  Hawaii  &c.  Sup. 
Ct.  Hawaii,  1899;  12  Hawaii, 


Page 
27,  Frear,  J.,  Vol.  I,  220 

Lewis,  Missouri  vs.  Missouri 
vs.  Lewis. 

Lew  Jim  vs.  United  States. 
U.  S,  Cir.  Ct.  App.  9th  Cir. 
1895;  29  U.  S.  App.  513,  Mc- 
Kenna,  J.,  Vol.  II,  119 

Libby  vs.  Clark.  U.  S.  Sup. 
Ct.  1886;  118  U.  S.  250,  Mil- 
ler, J.,  Vol.  II,  217 

License  Cases.  U.  S.  Sup.  Ct. 
1847;  sub  nomine,  Thurlow 
vs.  Massachusetts  (p.  504), 
Fletcher  vs.  Rhode  Island 
( i>.  540)  and  Pierce  vs.  New 
Hampshire  (p.  554),  5  How. 
504-U33,  Taney,  Ch.  J.,  Mc- 
Lean, Catron,  Daniel, 
Woodbury,  Grier,  JJ., 
Vol.  II.  349 

License  Tax  Cases,  The.  U. 
S.  Sup.  Ct.  1866;  5  Wallace, 
462,  Chase,  Ch.  J.,  Vol.  I,      546 

Life  Ins.  Co.,  Nor.  West,  Shep- 
ard  vs.  See  Shepard  vs.  Nor. 
West  Life  Ins.  Co. 

Light,  The  Ambrose  vs.  See 
^•1  m6ro.se  Light,  The. 

Litchfield  vs.  United  States. 
U.  S.  ct.  of  Clms.  1898;  33 
Ct.  of  Clms.  203,  Peelle,  J., 
Vol.  II,  223 

Lithographic  Co.  vs.  Sarony. 
U.  S.  Sup.  Ct.  1884;  111  U. 
S.  53,  Miller,  J.,  Vol.  I,         481 

Liverpool  Hero,  The.  U.  S. 
Cir.  Ct.  Mass.  1814;  2  G Al- 
lison, 184,  Story,  J.,  Vol.  I,  551 

Liverpool  &c.  Steamship 
Co.  vs.  Phoenix  Ins.  Co. 
U.  S.  Sup.  Ct.,  1889;  129  U. 
S.  397,  Gray,  J.,  Vol.  II,         189 

Livingston  vs.  Moore.  U.  S. 
Sup.  Ct.  1833;  7  Peters,  469, 
Johnson,  J.,  Vol.  I,         536,  542 

Livingston,  Steamboat  Co.  vs. 
See  Steamboat  Co.  vs.  Liv- 
ingston. 

Loan  Association  vs.  Topeka. 
U.  S.  Sup.  Ct.  1874;  20  Wal- 
lace, 655,  Miller,  J.,  Vol.  I, 

62,  542,  549 
Vol.  II,  350 

Locke's  Appeal.  Penna.  Sup. 
Ct.  1872;  72  Penna.  St.  491, 
Agnew,  J.,  Vol.  II,  355 

Lola,  lite.  Same  opinion  as 
Paquette  HaJiana,  The. 

Lomax  vs.  Pickering.  U.  S. 
Sup.   Ct.  1899;  173  U.  S.  26, 


Ixx 


TABLE  OF   CASES. 


Page 
Brown,  J.,  Vol.  I, 
Look  Till  Siujr,  In  re.    U.  S. 

(  ir.  rt.  C'ala.  1>S84;  10  Saw- 
yer, Sy.l  FiKLi),  .1.,  Vol.  II,     116 

Lopez  and  Sat  tier's  Case. 
Court  of  Errors,  1858;  1 
Dearsly  &  Bell's  Crown  Cases, 
525,  CocKBURN  and  Camp- 
bell, J.J.,  Vol.  II,  278 

Lord  liallhuore,  Penn  vs.  See 
Pcnn  v.'<.  Lard  liidtiiuore. 

Lord  Bishop  of  Natal.  Privy 
Couucil,  1804;  3  Moore  Priv. 
Couu.  N.  S.  115,  Westbukt, 
L(i.  Chan.,  Vol.  I.        62,  5.54,  555 

Loughborough  vs.  Blake.  U. 
S.  Sup.  Ct.  18i'0:5  Wlieaton, 
317,  Marshall,  Cli.  J.,  Vol, 

I,  466,  492,  539,  540,  546,  548 
Loui!<,  The  Le.     See  Le  Louis, 

The 

Louisiana  B''d  of  Health,  Mor- 
gan S.  S.  Co.  vs.  See  Mor- 
gan S.  S.  Co.  vs.  Louisiana, 
<fcc. 

Louisiana,  Kennard  vs.  See 
Kennard  vs.  Louisiana. 

Louisiana,  JVew  Hampshire  vs. 
See  New  Hampshire  vs.  Lou- 
isiana. 

Louisiana,  New  York\?>.  Same 
as  New  Hampshire  vs.  Louis- 
iana. 

Louisiana,  State  Board  of 
Health,  Compagnie  Francaise 
vs.  See  Compagnie  Fran- 
caise vs.  State  Board  of 
Health. 

Louisiana,  State  of,  Frederick- 
son  vs.  See  Frederickson  vs. 
State  of  Louisiana. 

Louisiana,  State  of,  Poydrasws. 
See  State  of  Louisiana  vs. 
Poydras,  and  also  Poydras 
vs.  Treasurtjr  <f  Louisiana. 

Love  vs.  Pamplin.  U.  S.  Cir. 
Ct.  Tenn.  1884;  21  Fed.  Rep. 
755,  Matthews,  J.,  Vol.  II, 

36,  213 

Lore  vs.  United  States.  U.  S. 
Ct.  of  Claims.  1894;  29  Ct. 
of  Clms.,  332,  Nott,  J.,  Vol. 

II,  223,  224 
Lowe,   Ft.    Leavenworth  B.  B. 

Co.  vs.  See  Fort  Leaven- 
vjorth  B.  B.  Co.  vs.  Lowe. 

Lowry  vs.  Wearer.  U.  S.  Cir. 
Ct.  Indiana,  1846;  4  McLean, 
82,  Vol.  II,  3.-3,  213 

Lucas  vs.  United  States.    U. 


Page 

S.  Sup.  Ct.  1896;    163  U.  S. 

612,  Shiras,  J.,  Vol.  II,  230 

Lucas,  Strother  vs.     See   Stro- 

ther  vs.  Lucas. 
Ludnig,  In  re.    U.  S.  Cir.  Ct. 

S.    D.    N.   Y.   1887;   32   Fed. 

liep.     774,     Lacombe,     J., 

Vol.  II,  264 

Luiz    Oteiza  y  Cortes,  In   re. 

See  Cortes  Luiz  Oteiza  y.  In 


Lumber,  134,000  ft.  See  One 
hundred  thirty-four  thousand 
feet  &c. 

Lunn,  Jackson  vs.  See  Jack- 
.son  vs.    Lunn. 

Luther  vs.  Borden.  U.  S. 
Sup.  Ct.  1849;  7  Howard,  1, 
Taney,  Ch.  J.,  Vol.  I, 


536 
544,  551 
Vol.  II,  361 

Lynch  vs.  Clark.  N.  Y.  Ct. 
of  Chancery ,  1844;  1  Sand- 
ford's  Ch.  583,  Sandfokd, 
Vice.  Chan.,  Vol.  I,  557 

Lynde,  United  States  vs.  See 
United  Strifes  vs.  Lynde. 

Ljng  vs.  Michig'an.  U.  S.  Sup. 
Ct.  1890;  135  U.  S.  161,  Ful- 
ler, Ch.  J.,  Vol.  I,  582 

Lynham,  Hauenstein  vs.  See 
Hauenstein  vs.  Lynliam. 

Lyon,  United  States  ex  rel.  vs. 
Huckabee.  See  United  States 
ex  rel.  Lyon  vs.  Huckabee. 

Lyons  vs.  Woods.  U.  S.  Sup. 
Ct.  1894;  153  U.  S.  649,  Ful- 
ler, Ch.  J.,  Vol.  I,  545 

MacDounell,  In  re.  U.  S.  Cir. 
Ct.  S.  D.  N.  Y.  1873;  11 
Blatchford,  79  and  170;  Fed. 
Cas.  Nos.  8771  and  8772, 
Woodruff,  J.,  Vol.  II,    -iM  265 

McAllister  vs.  United  States. 
U.  S.  Sup.  Ct.    1891;    141  U. 
S.   174,  Harlan,  J.,  Vol.  I,  130 
539,  545 

McBratney,  United  States  vs. 
See  United  States  vs.  Mc- 
Bratney. 

McCabe,  Ex  parte.  U.  S.  Dist. 
Ct.  Texas,  1891;  46  Fed.  Rep. 
363,  Maxey,  J.,  Vol.  II,  264 

McCall  vs.  California.  U.  S. 
Sup.  Ct.  1890;  136  U.  S.  104, 
Lamar,  J.,  Vol.  I,  546 

McClung,  Meigs  vs.  See  Meigs 
vs.  McClung. 

McCready  vs.  Virginia.  U.  S. 
Sup.  Ct.  1876;  94  U.  S.  391, 


TABLE   OF   CASES. 


Ixxi 


Page 
Waite,  Ch.  J.,  Vol.  II,  318,  320 
McCulloch  vs.  Maryland.    U. 

S.  Slip.  Ct.  1819;  4  Wbeaton, 
316,  Marshall,  Ch.  J.,  Vol. 
I,  246,  536,  541,  542 

McDaniel  vs.  McMeekin.  Ct. 
of  App.  So.  Car.  1834;  2 
Hill  (Part  I)  S.  C.  Law.  1, 
O'Neil,  Johnson,  Hakpek, 
JJ.,  Vol.  I,  536 

McDonald,  Phelps  vs.  See 
Phelps  vs.  McDonald. 

McDohou{/h,  Keene  vs.  See 
Keene  vs.  McDonouyh. 

McDoiuell,  Grisar  vs.  See  Gri- 
sar  vs.  McDowell. 

McFadden,  Exchange  [Schoon- 
er) vs.  See  Exchange  vs.  Mc- 
Fadden. 

McGlinn,  Chicago,  Rock  Isld. 
&  Pac.  B.  R.  Co.  vs.  See 
Chicago,  &c.,  R.  R.  Co.  vs. 
3IcGlinn. 

McGregor  vs.  Comstock.  N. 
Y.  Sup.  Ct.  1853;  16  Barbour, 
427,  Edwards,  .J.,  Vol.  II,      180 

Mellvaine  vs.  Coxe's  Lessee. 
U.  S.  Sup.  Ct.  1805 ;  2  Crauch, 
280;  same  case,  1808;  4 
Cranch,  208,  Cushing,  J., 
Vol.  II,  169 

Mclntofth,  Johnson  vs.  See 
Johnson  vs.  Mcintosh. 

McKay  vs.   Campbell.     U.  S. 
Dist.Ct.  Oregon,  1871;  2  Saw- 
yer, 118,  Deady,  J.,  Vol.  I,  538 
554,  556,  557,  559 
Vol.  II,  168,  232 

McKibben,  Davidson  vs.  See 
Davidson  vs.  McKibben. 

McKinney  vs.  Saviego.    U.  S. 
Sup.    Ct.  1855;   18   Howard, 
235,  Campbell,  J.,  Vol.  II,     56 
169,  179 

McLeod,  People  [N.  Y. ),  vs.  See 
People  [N.  Y.)  vs.McLeod. 

McMahon,  Benson  vs.  See 
Benson  vs.  McMahon. 

McMnster,  Jones  vs.  See  Jones 
vs.  McMaster. 

McMeekin,  McDaniel  vs.  See 
McDaniel  vs.  McMeekin. 

McNeil,  £x  parte.  U.  S.  Sup. 
Ct,  1871;  13  Wallace,  236, 
SWAYNE,  J.,  Vol.  I,  542 

McPlierson  vs.  Blacker.  U.  S. 
Sup.  Ct.  1892;  146  U.  S.  1, 
Fuller,  Ch.  J.,  Vol.  I,    536,  541 

544 
Vol.  II,  361 


Page 
McPlmn,  In  re.    U.  S.   Cir. 

Cl.  S.  D.  N.  Y.  1887;  30  Fed. 
Rep.  57,  Brown,  J.,  Vol.  II,  265 

Mackey  vs.  Coxe.  U.  S.  Sup. 
Ct.  1855;  18  Howard,  100, 
McLean,  J.,  Vol.  II,  221 

Madison,  Marbury  vs.  See  Mar- 
burtj  vs.  Madison. 

Mafia  Riot  Cases.  See  New 
Orleans  vs.  Abbagnato. 

Magee,  Jecker  vs.  See  Haver 
vs.  Yaker. 

Mager  vs.  Gfrinia.  U.  S.  Sup. 
Ct.  18.50;  8  Howard,  490, 
Taney,  Ch.  J.,  Vol.  II,  52 

Magone,  JS^orth  German  Lloyd 
S.  S.  Co.  vs.  See  Nor.  Ger. 
ifcr-.  vs.  Magone. 

Mahou  vs.  Justice.  U.  S.  Sup. 
Ct.  1888;  127  U.  S.  700, 
Field,  J.,  Vol.  II,  266 

Malioney  vs.  United  States. 
U.  S.  ct.  of  Claims,  1867;  3 
Ct.  of  Claims,  152,  Nott,  J., 
Vol.  II,  335 

Maiden  vs.  Ing-ersoll.  Sup. 
Ct.  Michigan,  18.>9;  6  Mich. 
373,  Campbell,  J.,  Vol.  II,      46 

Maine,  State  of'  vs.  Newell. 
See  State  of  Maine  vs.  New- 
ell. 

Maisli  vs.  Arizona.  U.  S.  Sup. 
Ct.  1896;  164  U.  S.  599, 
Brewer,  J.,  Vol.  II,  194 

Manchester  vs.  Massachu- 
setts. U.  S.  Sup.  Ct.  1891; 
139  U.  S.  240,  Blatchford, 
J.,  Vol.  IL  315,  319 

Mann  vs.  Wilson.  U.  S.  Sup. 
Ct.  1859;  23  Howard,  457, 
Catron,  J.,  Vol.  II,  217 

Mann  and  Ross,  Iowa  vs.  See 
loioa  vs.  Ross  and  Mann. 

Marhury  vs.  Madison.    U.  S. 
Sup.  Ct.  1803;  1  Cranch,  137, 
Marshall,  Ch.  J.,  Vol.  I,        62 
536,  541,  544,  545,  556,  584 
Vol.  II,  361 

Marie,  The.  U.  S.  Dist.  Ct. 
Oregon,  1892;  49  Fed.  Rep. 
286,  Deady,  .J.,  Vol.  II,  333 

Mares  vs.  United  States.  U. 
S.  Ct.  of  Claims,  1894;  29 
Ct.  of  Claims,  197,  Weldon, 
J.,  Vol.  II,  223 

Marriott,  Oldfield  vs.  See  Old- 
field  vs.  Marriott. 

Marsh  vs.  Brooks.  IT.  S.  Sup. 
Ct,  18.")0;  8  Howard,  223, 
Catron,  J.,  Vol,  II,  207 


Ixxii 


TABLE   or   CASES. 


Page 

Marshal,  U.  S.,  case.  See  In  re 
Ncagle  (California  Case). 
Neehj  vs.  Henhl  [N.  Y.). 

Martiu  vs.  Hiintei*.  U.  S.  Sup. 
Ct.     18IG;    1    Wheaton,   304, 
Stoey,  J.,  Vol.  I,    46,  48,  50,  557 
559,  561 
Vol.  II,  13,  19 

Martiu  vs.  Mott.  U.  S.  Sup. 
Ct.  1827;  12  Wheaton,  lU, 
Stoky,  J.,  Vol.  II,  98 

Martin  vs.   Waddell.     U.  S. 
bup.  Ct.  1842;  16  Peters,  367, 
Taney,  Ch.  J.,  Vol.  I,     536,  542 
559,  561 

Martin,  Good  vs.  See  Good  vs. 
Martin. 

Martin,  United  States  vs.  See 
United  States  vs.  Martin. 

Maryland  vs.  Warren.  Ct. 
A  pp.  Md.  1867;  28  Md.  338, 
Mjller,  J.,  Vol.  I,  474 

Maryland,  Brown  vs.  See 
Brawn  vs.  Maryland. 

Maryland,  McCulloch  vs.  See 
McCuUoch  vs.  Mai-ylnnd. 

Maryland,  Smith  vs.  See  Smith 
vs.  State  of  Maryland. 

Massachusetts,  Commomoealfh 
of,  vs.  Slifofe.  See  Commun- 
loealth  vs.  Sheafe. 

Massachusetts,  Manchester  vs. 
See  Manchester  vs.  Massa- 
chusetts. 

Massachusetts,  Rhode  Island  vs. 
See  liliode  Island  vs.  Massa- 
chusetts. 

Massarhu setts,  Thurloio -vs.  See 
LirenS''  Cai^es. 

Mattingly  vs.  Dist.  of  Colum- 
bia. U.  S.  Sup.  Ct.  187^;  97 
U.  S.  987,  Stkong,  J.,  Vol.  I,  540 

Maurice,  United  States  vs.  See 
United  States  vs.  Maurice. 

Maxwell  vs.  Dow.  U.  S.  Snp. 
Ct.  1900;  176  U.  S.  581,  Peck- 
ham,  J.,  Vol.  I,    62,  5-12,  549,  556 

May  vs.  New  Orleans.  U.  S. 
Sup.  Ct.  1900:  178  U.  S.  496, 
H.\RLA>\  .J.,  Vol.  I,  542,  546 

Majer  vs.  White.  U.  S.  Sup. 
Ct.  1860;  24  Howard,  317, 
Nelson.  J.,  Vol.  II,  297 

Mayes.  Taltan  vs.  See  Taltan 
vs.  Mayes. 

Mayfleld,  In  re.  U.  S.  Sup. 
Ct.  18iJl;  141  U.  S.  107, 
Brown.  .J.,  Vol.  II.  229 

Mayor  qf  New  York,  Duryee  vs. 


See  Duryee  vs.  Mayor  of  New 
York. 

Mayor  of  Neio  York,  Hender- 
son vs.  See  Henderson  vs. 
Mayor  of  New  York. 

Mayor,  The,  Sharpless  vs.  See 
iS//orp?e.ss  vs.  The  Mayor. 

Meade  vs.  United  States.  U. 
S.  Sup.  Ct.  1869,  9  Wallnce, 
691,  Clifford,  J.,  affirming 
in  part  same  case,  1866;  2  Ct. 
of  Claims,  224,  Casey,  Ch.  J., 
Vol.  II,  146,  310 

Mechanic's  Bank  vs.  Union 
Bank.  U.  S.  Sup.  Ct.  1874; 
22  Wallace,  276,  Strong,  J., 
Vol.  I,  551 

Meehan,  Jones  vs.  See  Jones 
vs.  Meelian. 

Mehlin  vs.  Ice.  U.  S.  Cir.  Ct. 
App.  8tli  Cir.  1893;  12  U.  S. 
A  pp.  305,  Caldwell,  J., 
Vol.  II,  221 

Meier  vs.  Lee.  Sup.  Ct.  Iowa, 
1898;  106  luwa,  303,  Given, 
J.,  Vol.  II,  44 

Meigs  vs.  McClung.  U.  S. 
Sup.  Ct.  1815;  9  Cranch,  11, 
Marshall,  Cb.  J.,  Vol.  II,  217 

603 

Mein,  Higginson  vs.  See  Hig- 
giiison  vs.  Mein. 

Meredith  vs.  United  States. 
U.  S.  Sup.  Ct.  1839;  13  Pe- 
ters, 486,  Story,  J.,  Vol.  I,      571 

Merritt,  Hilton  vs.  See  Hilton 
vs.  Merritt. 

Merryman  vs.  Bourne.  U.  S. 
Sup.  Ct.  1869;  9  Wallace, 
592,  SwAYNE,  J..  Vol.  II,  152, 184 

Mesa  vs.  United  States.  U.  S. 
Sup.  Ct.  1862;  2  Black,  721, 
Per  Curiam.  Vol.  II,  184 

Metropolitan  R.  R.  vs.  Dist. 
ot  Coluuihia.  U.  S.  !Sup. 
Ct.  1889;  132  U.  S.  1,  Brad- 
ley, J.,  V(d.  I,  540 

Metz,  Milnor  vs.  See  Milnor 
vs.  Metz. 

Metzger,  In  re  falso  reported 
as  Metzgar,  In  re).  U.  S. 
Sup.  Ct.  1847;  5  Ho\\aid, 
176,  McLean,  J.;  sauie  case 
below,  U.  S.  Dist.  Ct.  S.  D. 
N.  Y.  1847;  Fed.  Cas.  9511, 
Betts,  J.  See  also  N.  Y. 
Sup.  Ct.  1847;  1  Barbour, 
248,  Edmonds,  J.. Vol.  11,  63,  79 
81,  105,  128,  259,  324 


TABLE   OF   CASES. 


Ixxiii 


Page 

Mexican  Award  Cases.  See 
Frelinghuysen  vs.  Key.  La 
Abra  cbc.  vs.  Fri'liiiglnq/sen. 
United  States  vs.  Weil.  Unit- 
ed States  ex  rel.  Boynton  vs. 
Blaine. 

Mexican  Boundary  Case.  See 
United  States  vs,  Rio  Grande 
Dam  &c.  Co. 

Mexican  Ditty  Case.  See  Flem- 
ing vs.  Page. 

Miami  County  Commis.,  Peck 
vs.  See  Peck  vs.  Miami 
County  Coinmis. 

Michigan,  Lyng  vs.  See  Lyng 
vs.  Michigan. 

Michigan,  People  of,  vs.  Tyler. 
See  People  vs.  Tyler. 

Miller  vs.  Sherry.  U.  S.  Sup. 
Ct.  1864;  2  Wall.  237, 
SWAYNE,  J.,  Vol.  II,  295 

Miller  vs.  United  States,  U. 

S.  Suji.  Ct.  187U;  11  Wallace, 
268,  Strong,  J.,  Vol.  I,    536,  5-14 
Vol.  II,  265,  361 

Miller,  In  re.  U.  S.  Cir.  Ct. 
Penna.  18S5;  23  Fed.  Rep.  32, 
AcHESON,  J.,  Vol.  II,  265 

Milligan,  Ev  parte.  U.  S. 
Sup.  Ct.  1866;  4  Wallace,  2, 
Davis,  J.,  Vol.  I,  541,  542 

545,  551,  556 

Miln,  New  York  vs.  See  New 
York  vs.  Miln. 

Milner,  Minn.  &  St.  P.  R.  R. 
Co.  vs.  See  Milner  vs.  Minn. 
&c.  R.  R.  Co. 

Milnor  vs.  Metz.  U.  S.  Sup. 
Cc.  lS-i-2;  16  I'etei-s,  221,  Ca- 

TROX,   J.,    Vol.    II, 

Mineaii,In  re.  U.  S.  Cir.  Ct. 
Vermont,  1891 ;  45  Fed.  Rep. 
188,  Wheelek,  J.,  Vol.  II, 

Miner's  Bank  vs.  Iowa.    U.  S. 

Sup.  Ct.  1851;  12  Howard,  1, 
Daniel,  J.,  Vol.  I, 

Mining  and  Land  Companies. 
See  Land  and  Mining  Com- 
panies. 

Minnesota  &  St.  P.  R.  R.  Co. 
vs.  Milner.  U.  S.  Cir.  Ct. 
Mich.  1893;  57  Fed.  Rep. 
276,  Per  Curiam.VoI.  II,  51 

Minnesota,  State  of,  vs.  Camp- 
bell. See  State  of  Minnesota 
vs.  Camphell. 

Minor  vs.  Happersett  (Wom- 
an's Rights  case).  U.  S.  Sup. 
Ct.   1874;    21   Wallace,    162, 


293 


267 
275 


539 


Page 
Watte,  Ch.  J.,  Vol.  I,      479,  542 
556,  557 
Minter  vs.  Crommelin.    U.  S. 

Sup.  Ct.  185.-);  18  Howard,  87, 

Catkon,  J.,  Vol.  II, 
Misaionary    Union,    Turner  vs. 

See  Turner  vs. -4m.  Bap.  Miss. 

&c. 
Missouri  vs.  Andriano.    U.  S. 

Sup.  Ct.  1890;  138  U.  S.  496, 

BUOWN,  J.,  Vol.  II, 

Missouri    vs.    Lewis.     U.  S. 

Sup.  Ct.  1879;  101  U.  S.  22, 


217 


169 


Bradley,  J.,  Vol.  I, 


541,  545 
549 
See 


Ifissouri,      Brooks     vs. 
Brooks  vs.  ^lissouri. 

Missouri,  CuuDuings  vs.  See 
Cummings  vs.  Missouri. 

Missouri,  Ewert  vs.  See  Ewert 
vs.  Missouri. 

Missouri  K.  &  T.  R.  R.  Co. 
vs.  Roberts.  U.  S.  Sup.  Ct. 
1894;  l.j2  U.  S.  114,  Field, 
J.,  Vol.  II,  217 

Missouri  K.  &  T.  R.  R.  Co. 
vs.  United  States.  U.  S. 
Sup.  Ct.  1875;  92  U.  S.  760, 
Davis,  J.,  Vol.  II,  217 

3Iinsouri  River  R.  R.  Co.,  Stroud 
vs.  See  Stroud  vs.  Missouri 
d-r.  R.  R.  Co. 

Mitchell  vs.  Bunch.  Ct.  of 
Chancery,  N.  Y.  1831;  2 
Paige's  Ch.  605,  Walworth, 
Ch-.in.,  Vol.  II,  295 

Mitchell  vs.  Harmony.    U.  S. 
Sup.    Ct.    1851;    13    Howard, 
115,  Taney,  Ch.  J.,  Vol.  I,  500 
549,  551 

Mitchel  vs.  United  States.  IT. 
S.  Sup.  Ct.  1835;  9  Peters  711, 
Baldwin,  J.,  same  case  1841; 
15  Peters,  52,  Wayne,  J., 
Vol.  I,  538,  539,  553,  554,  5-59 

Vol.  II,        147,  16-.',  165,  207,  232 

Mobile  vs.  Eslava.  U.  S.  Sup. 
Ct.  1842;  J  6  Peters  234,  Mc- 
Lean, .T.,  Vol.  I,  560 

Moncan,  In  re  (alias  Ah  Wah ). 
U.  S.  Cir.  Ct.  Ore<i(.n,  1882; 
8  Sawyer,  350;  14  Fed.  Rep. 
44,  Deady,  J..  Vnl.  II,  114 

Mononarahela  Nsiv.  Co.  vs. 
United  States.  U.  S.  Sup. 
Ct.  1S93;  148  U.  S.  312, 
Brewkr,  J.,  Vol.  I,  541,  549 

Montgomery,  Jecker  vs.  See 
Jei-ker  vs.  Montgomery. 

Moor,   Veazie  vs.     See  Veazie 


Ixxiv 


TABLE   OF  CASES. 


Page 

vs.  Moor. 
Moore  vs.  llliuois.     U.  S.  Sup. 

Ct.     1852;    14     Howard    13, 

Ghiek,  .1..  Vol.  I.  557 

Moore  vs.  United  States.  U.  S. 

Ct.  of  Claims  1897;  32  Ct.  of 

Claims  593,  Peelle,  J.,  Vol. 

II,  223 

2tIonre,      Knmolton      vs.       See 

Knowlton  vs.  Moore. 
Moore,    Livhi!)sto)te    vs.       See 

Livingstone  vs.  Moore. 
Moore,  United    States  vs.     See 

United  States  vs.  Moore. 
Morant,  United  States  vs.     See 

United  State.H  vs.  Morant. 
Moreno,  United  States  vs.     See 

United  Slates  vs.  Moreno. 
Morgan  S.  S.  Co.  vs.  Louisiana 

Board  of  Health.  U.  S.  Sup. 

Ct.  1886;  118  U.  S.  455,  Mil- 

LEK,   J.,  Vol.   II,  51 

Mormon  Church  vs.  United 
States.  U.  S.  Sup.  Ct.  1890; 
13l)    U.     S.     1,  BliADLET,     J., 

Vol.    I,      62,  64,  71,  1-28,  129,  130 
536,  538,  539,  541,  544,  550 

Vol.  II,  361 

Morrill  vs.  Jones.    U.  S.  Sup. 

Ct.     1882;     106    U.    S.     466, 

Waite,   Ch.  J.,  Vol.  I, 

Vol.  II, 
Morris  vs.  United  States.    U. 

S.  Sup.    Ct.    1899;  174  U.  S. 

196,  Shiras,  J.,  Vol.  I, 

Vol.  II, 
Morris,  United  States  vs.     See 

United  States  vs.  Morris. 
Morton  vs.  United  States.     See 

United  States  vs.  Sandoral. 
Morton,  Taylor  vs.     See  Taylor 

vs.  Morton. 
Mostyn  vs.  Fabrigas.    King's 

Bench,   1774;    Cowper,    161, 

Lord    Mansfield,   Vol.    I, 


544 
361 


538 
17 


500 

551 


Motherwell,  United  States  exrel. 

Alexandroff  vs.     See   United 

States  ex  rel.  Alexandroff  vs. 

Motherwell. 
Mott,  Martin    vs.     See  Martin 

vs.  Mott. 
Mrs.  Guf  Lim,  United  States  vs. 

See    United    States  vs.    Gue 

Lim,  Mrs. 
Muckey,    Goodfellow    vs.     See 

Gondfellow  vs.  Muckey. 
Muller  vs.  Baldwin.    Queen's 

Bench,  1874;    L.   R.  9  Q.  B. 

457,  Lush,  J.,  Vol.  I, 


571 


Page 

Muller's  Case.  IT.  S.  Dist.  Ct. 
I'euua.  1863;  Fed.  Cas.  9913, 
Cadwalader,   J.,  Vol.  II,     265 

Municipality,  Permoli  vs.  See 
Per  mull  vs.  Municipality. 

Munn  vs.  Illinois.    U.  S.  Sup. 
Ct.  1876;  94  U.  S.  113,  Waite, 
Ch.  J.,  Vol.  I,  536,  542,  544,  546 
Vol.  II,  361 

Murphy  vs.  Ramsey.     U.  S. 
Sup.  Ct.  1885;  114  U.  S.   15, 
Matthews,    J.,  Vol.    I,      62,  64 
129,  130,  539.  541,  550,  556 
Vol.  II,  167,  225,  350 

Murray  vs.  Clark.  N.  Y.  Com. 
Pleas  1873 ;  4  Daly  468,  Daly, 
Ch.  J.,  Vol.  L  548 

Murray  vs.  Hoboken  Co.  U. 
S.  Sup.  Ct.  1855;  18  HovFard, 
272,  Curtis,  J.,  Vol.  II,  98 

Naglee,  People  {Cala.),vs.  See 
People  vs.  Naglee. 

Names.  See  Bank  &c.  Chin- 
ese Names.  Lidian  Names. 
Insurance  Cos.,  names  of. 
Land  and  Mining  Co.  &c. 
Railroad  Companies.  Ves- 
sels, names  of. 

Nancy,  The,  United  States  vs. 
See  United  States  vs.  The 
Nancy. 

Nash  {alias  Bobins),  United 
States  vs.  See  United  States 
vs.  Nash  {alias  Bobins). 

Natal,  Lord  Bishop  of.  See 
Lord  Bisliop  of  Natal. 

National  Bank  vs.  County  of 
Yankton.  U.  S.  -  Sup.  Ct. 
1879;  101  U.  S.  129,  Waite, 
Ch.  J.,  Vol.  I,  471,  539 

National  Bank,  County  of  Wil- 
son. See  County  of  Wilson 
vs.  National  Bank. 

Navarre  vs.  United  States. 
U.  S.  ct.  of  Claims,  1898;  33 
Ct.  of  Clms,  235,  Howry,  J. ; 
affirmed  U.  S.  Sup.  Ct.  1899; 
173  U.  S.  77,  McKenna,  J., 
Vol.  II,  223 

Navarre,  United  States  vs. 
See  United  States  vs.  Na- 
varre. 

Navassa  Islands  Case.  See 
Jones  vs.  United  States. 

Navassa  Phosphate  Co.,  Dun- 
can vs.  See  Duncan  vs.  Na- 
vassa Phosphate  Co. 

Nazro,  Cotzhausen  vs.  See 
Cotzhausen  vs.  Nazro. 

Neagle,  In  re.    U.  S.  Sup.  Ct. 


TABLE  OF   CASES. 


Ixxv 


Page 

1890;  135  U.  S.  1,  Miller,  J., 
Vol.  I,  190,  530,  545,  550 

Neal,  Alameda  vs.  See  Ala- 
meda vs.  Neal. 

Nebraska  ex  rel.  Thayer,  Boyd 
vs.     See  Hoijd  vs.  Nebraska. 

Neely  vs  Heukel.     U.  S.  Sup. 
Ct.  1901;  180  U.  S.  109,  Hak- 
LAN,    J.,    affiiming     In    re 
Neely,  U.  S.  Cir.   Ct.  1901; 
]03   Fed.   Rep.   020  and  031, 
Lacombe,  J.,  Vol.  I,         138,  139 
173,  174,  175,  177,   178  (opiuioa 
in   fall),    538,    541,    544 
551,  5J2,  554,  550,  559 
Vol.  II,  247,  248,  254,  200 

201,  202,  301 

Neilson,  Foster  and  Elam  vs. 
See  Foster  and  Elam  vs.  Neil- 
son. 

Nelson  v.«i.  United  States.  U. 
S.  Cir.  Ct.  Oregoa,  1887;  30 
Fed.  Rep.  112,  Deadv,  J.; 
affirming  United  States  vs. 
Nelson,  U.  S.  Dist.  Ct. 
Alaska,  1886,  29  Fed.  Rep. 
202,  Dawson,  J.,  Vol.  1,  553 

Nelson,  United  States  vs.  See 
United  States  vs.  Nelson. 

Nereide,  The.  U.  S.  Sup.  Ct. 
1815;  9  Cranch,  388,  Mar- 
SHAix,  Ch.  .J.,  Vol.  ir,  190 

Netherclift  vs.  Itobertsou.  U. 
S.  Cir.  Ct.  S.   D.   x\.  Y.  1886; 
23  Blatchford,   540;  27  Fed. 
Rep.  737,  CoxE,  J.,  Vol.  I,       439 
Vol.  II,  73 

Nevada,  Crandall  vs.  See  Cran- 
dall  vs.  Nevada. 

Newell,  State  of  Maine  vs.  See 
Statp  of  Maine  vs.  Newell. 

New  Hampshire  vs.  Louis- 
iana. U.  S.  Sup.  Ct.  1883; 
108  U.S.  76,  Waite,  Ch.  J., 
Vol.  I,  542,  550 

New  Hampshire,  Pierce  vs.  See 
License  Cases. 

New  Haven,  Society  for  the 
Propagation  of  the  Gospel  vs. 
See  Society  &c.  vs.  Town  of 
New  Haven. 

New  Jersey,  Brown  vs.  See 
Brown  vs.  New  Jersey. 

Nevu  Jersey,  State  of  vs.  Wil- 
son. See  State  of  New  Jer- 
sey vs.  Wilson. 

Newman,  In  re.  U.  S.  Cir. 
Ct.  Cala.  1897;  79  Fed.  Rep. 
622,  MOKKOW,  J.,  Vol.  II,        285 

Newman,    Ex  parte.     See    Pi- 


page 
wine  Kreplin,  The. 

New  Orleans  vs.  Abba^nato. 
U.  S.  Cir.  Ct.  App.  5tn  Cir. 
1894;  23  U.  S.  App.  533,  Par- 
dee, J.,  Vol.  I,  155,  156 

New  Orleans  vs.  Armas.  U. 
S.  Sup.  Cl.  1835;  9  Peters, 
224,  Marshall,  Ch.  J.,  Vol. 
I,  554,  559 

Vol.  II,  165 

New   Orleans  vs.   Steamship 

Co.  \J.  S.  Sup.  Ct.  1874;  20 
Wallace,  387,  Swayne,  J., 
Vol.  I,  497,  551,  554 

Vol.  II,  165 

New  Orleans  vs.  United 
States.  U.  S.  Sup.  Ct.  1830; 
10  Peters,  662,  McLean,  J., 
Vol.  I,  530,  542,  543,  553,  559 

V(.l.  n,  165 

New  Orleans  vs.  Winter.  U. 
S.  Sup.  Ct.  1810;  1  Wheaton, 
91,  Marshall,  Ch.  J.,  Vol.  I,     27 

New  Orleans,  City  of,  Fou- 
vergne  vs.  See  Fotivergne  vs. 
City  of  New  Orleans. 

Neio  Orleans,  May  vs.  See 
May  vs.   New   Orleans. 

Neio  Orleans  &c.  li.  R.  Co., 
Herman  vs.  See  Herman  vs. 
New  Orleans  R.  R.  Co. 

New  Orleans  R.  R.  Co.,  Hubyh 
vs.  See  Hubgh  vs.  New  Or- 
leans R.  R.  Co. 

New  Orleans  Savings  Bank, 
Addison  vs.  See  Addison 
vs.  New  Orleans  Savings 
Bank. 

New  York  vs.  Miln.     U.  S. 
Sup.     Ct.    18.37;    11    Peters, 
102,  Barbour,  J.,  Vol.  1, 541,  543 
540,  552,  553,  559,  560,  561 
Vol.  II,  51 

New  York  vs.  Louisiana.  Same 
as  New  Hampshire  vs.  Louisi- 
ana. 

N.  Y.  and  Porto  Rico  S.  S.  Co., 
Huus  vs.  See  Huus  vs.  N. 
Y.  and  Porto  Rico  S.  S.  Co. 

New  York  Indians  vs.  United 
States.  U.  S.  Sup.  Ct.  1898; 
170  U.  S.  1,  Brown,  J., 
Vol.  I,  568 

New  York  Indians  vs.  United 
States.  U.  S.  Ct.  of  Claims, 
189.5;  30  Ct.  of  Clms.  413, 
Davis,  .1.,  Vol.  II,  84,  235 

New  York  Indians,  The.  U. 
S.  Suj..  Ct.  1800;  5  Wallace, 
701,  Nelson,  J.,  Vol.  II,  34 


lx> 


XVI 


TABLE   OF   CASES. 


Page 
213,  229 
New     York    Indians,     United 
States  vs.     See  United  States 
vs.    yen:  Yoric  Indians. 

Jfew  York  Iiis.  Co.  vs.  Roulet. 

N.  Y.  Lt.  uf  E  ITU  IS,  1840; 
24  Wendell,  50-3,  Buauish, 
Prest.  d:c.,  Nki-SON,  Cli.  J., 
Vol.  II,  298 

New  Vork  Life  Ins.  Co.,  Varet 
vs.  See  Vuret  vs.  New  York 
Life  Inn.  Co. 

New  York,  Mayor  of,  Duryee  vs. 
See  Duryee  vs.  Mayor  &c. 

New  York,  Mayor  of,  Hender- 
son vs.  See  Ilenderson  vs. 
Mayor  of  Neio  York. 

New  York  {People),  Canal  Ap- 
jyraisers  vs.  See  Canal  Ap- 
praisers vs.  People. 

New  York  {People)  vs.  Conklin. 
See  People  (New  York)  vs. 
Conklin. 

New  York,  People  of  &c.  vs. 
Curtis.  See  People  &c.  vs. 
Curtis. 

New  York,  People  of  &c.  vs. 
Dibble.     See  Cutler  vs.  Dibble. 

New  York,  People  of  &c.  vs. 
McLeod.  See  People  &c. 
vs.  McLeod. 

New  York,  People  of  &c.  vs. 
Stout.  See  People  &c.  vs. 
Stout. 

New  York,  People  of,  vs.  War- 
ren. See  People  ifcc.  vs.  War- 
ren. 

New  York  (State  of).  Canal 
Appraisers  vs.  See  Canal  Ap- 
praisers vs.  New  York. 

Nicholson,  Gaines  vs.  See 
Gaines  vs.  Nicholson. 

Nina,  The.  Arlm.  &  Eccl.  Ct. 
(En<,rlisli)  1867;  L.  K.  2  Adm. 
aud  Eccl.  44;  Sib  Robert 
Phillimoke;  s.  c.  on  ap- 
peal, L.  R.  2  Privy  Coim. 
38,  Lord  Romii.ly,    Vol.  II,  3.30 

Niiifa  La.     See  La  Ninfa,  The. 

Nishimiira  Ekiu  vs.  United 
States.  See  Ekiu,  Nishimura, 
vs.  United  States. 

Noflre  vs.  United  States. 
U.  S.  Sup.  Ct.  1897;  164 
U.  S.  6.j7,  Brewer,  J., 
Vol.  II,  229 

Norman  vs.  Heist.  Penna. 
Sup.  Ct.  1843;  b  W.  &  S. 
(Penn.),  171,  Gibson,  Ch.  J., 
Vol.  I,  474 


Page 
Norris    vs.  City    of    Boston. 
iPasseng'er   cases).     U.   s. 

Sui).  Ct.  1849;  7  Howard,  283, 

Vol.  II,  51,  59 

North  Dakota,  State  of,  ex  rel. 

Tonipton  vs.    Donoyer.      See 

State  <fef.  vs.  Donoyer. 
Northern    Pacific   R.    li.    Co., 

Buttz    vs.       See    Buttz    vs. 

Northern  Par.  R.  R.  Co. 

North  German  Llojd  S.  S. 
Co.   vs.    Hedden ;   same  vs. 

Mag^one.  U.  S.  Cir.  Ct.  New 
Jersey,  1890;  43  Fed.  Rep. 
17,  Wales,  J.,  Vol.  II,       77,  332 

North  Western  Life  Ins.  Co., 
Shepard  vs.  See  Shepard 
vs.  North  West.  Life  Ins.  Co. 

Norwood's  Lessee,  Owings  vs. 
See  Owings  vs.  No7'wood^s 
Lessee. 

Nunan  Ho-Ah-Kow  vs.  See 
Ho- Ah- Koto  vs.  Nunan 

Nye,  Leonard  vs.  Leonard  vs. 
Nye. 

Oakey  vs.  Bennett.  U.  S. 
Sup.  Ct.  18.J0;  11  Howard,  33, 
McLean,  J.,  Vol.  I,  220 

Vol.  II,  165 

Ogden  vs.  Blackledge.  U.  S. 
Sup.  Ct.  1804;  2  Crunch,  272, 
Cttshing,  J.     Vol.  II,  363 

Oyden,  Gibbons  vs.  See  Gib- 
bons vs.  Ogden. 

Ohio,  State  of,  vs.  Vanderpool. 
See  State  tfic.  vs.  Vanderpool. 

Okely,  Bank  of  Columbia  vs. 
See  Bank  of  Colombia  vs. 
Oki-ly. 

Oldfield  vs.  Marriott.  U.  S. 
Sup.  Ct.  18.j0;  10  Howard, 
146,  Wayne,  J.,  Vol.  II,  76 

Old  Settlers,  United  States  vs. 
See  United  States  vs.  Old 
Settlers. 

Olirer^s  Executors,  Gillvs.  See 
Gill  vs.  Oliver''s  Executors. 

OloffSt.,  The,  Weiburgvs.  See 
Weiburg  vs.  The  St.  Oloff. 

One  hundred  &  thirty-four 
thousand  feet  of  lumber 
&c.  U.  S.  Disr.  Ct.  N.  D.  N.  Y. 
1858;  4  BLitchford,  182,  Nel- 
son, J.,  Vol.  II,  71 

O'Neill  vs.  Vermont.     U.   S. 
Sup.  Ct.   1892;  144  U.  S.  323, 
Blatchford,  J.,   Vol.  I,         543 
549,  5.30,  556,  557 

Opel  vs.  Shoup.  Sup.  Ct. 
Iowa,   1896;    100   Iowa,   407 


TABLE   OF   CASES. 


Ixxvii 


Page 
and  420,  Given,  J.,  Vol.  II,  40,  44 

Oregon,  Lane  vs.  See  Lane 
vs.  Oregon. 

Oriii'inal  Package  Case.  See 
Brown  vs.  Maryland. 

Ornelas  vs.  Ruiz.  U.  S.  Sup. 
Ct.  1890;  1(51  U.  S.  502,  Ful- 
ler, Ch.  J.,  Vol.  II,  267 

Orpeu,  In  re.  U.  S.  Cir.  Ct. 
Cala.  1898;  8(5  Fed  Rep.  700, 
Morrow,  J.,  Vol.  II,  266 

Orr  vs.  Hodgson.  U.  S.  Sup. 
(Jt.  1819;  4  Wheaton,  453, 
Stoky,  J.,  Vol.  II,         13,  15,  179 

Orser  vs.  Hoag-.  N.  Y.  Sup. 
Cc.  1842;  3  Hill,  79,  Nelson, 
Ch.  J..  Vol.  II,  37 

Ortiz,  Ex  parte.    U.  S.   Cir. 
Ct.  Mitin.  1900;  100  Fed.  Rep. 
955,  LocHUAN,  J.,  Vol.  I,  538,  539 
545,  551,  553,  554,  556,  557,  561 
Vol  II,  128,  165,  170 

Osborn  vs.  Bank  of  United 
States.  U.  S.  Sup.  Ct.  1824; 
9  Wheaton,  738,  Marshall, 
Ch.  J.,  Vol.  II,  112. 

Osborne,  United  States  vs. 
See  United  States  vs.  Osborne. 

Oteiza  y,  Cortes,  In  re.  See 
Cortefi,  Luiz  Oteiza  y.  In  re. 

Owing^s  vs.  Norwood's  Lessee. 
U.  S.  Sup.  Ct.  1S09;  5 
Cranch,  344,  Maksiiall,  Ch. 
J.,  Vol.  II,  16,  246 

Packard,  Davis  vs.  See  Davis 
vs.  Packard. 

Page,  Fleming  vs.  See  Flem- 
iwi  vs.  Page. 

Palairet's  Appeal.  Penna. 
Sup.  Ct.  1871;  67  Penu.  Sr. 
479,  Shauswood,  J.,  Vol.  I,  474 

Palmer,  In  re.  U.  S.  Dist.  Ct. 
Penua.  1873;  Feil.  Cas.  10679, 
Cadwalader,  J.,  Vol.  II,      266 

Palmer,  United  Stati'S  vs. 
See  United  States  vs.  Palmer. 

Pamplin,  Love  vs.  See  Love 
vs.  Pamplin. 

Pam-to-pee  vs.  United  States. 
U.  S.  Sup.  Ct.  1893;  148  U.  S. 
691,  Shir  as,  J.,  affirming 
Potawatamie  Indians  vs. 
United  States.  U.  S.  Ct. 
of  Claims,  1892;  27  Ct.  of 
Clms.  403,  Weldon,  J., 
Vol.  II,  217,  235 

Panama,  The  City  of.  See 
City  of  Panama,  The. 

Panzara,  In  re.  U.  S.  Dist. 
Ct.  E.  D.  N.  Y.  1892;  51  Fed. 


Page 

Rep.     275,     Benedict,     J., 
Vol.  II,  118 

Paquette  Habana,  The.   U.  S. 

Sup.  Cc.   19U0;  175  U.  S.  677, 
Gray,  J.,  Vol.  I,  551,  552 

Vol.  II,  188,  304 

Pargoud,  Snccession  of.  Sup. 
Cc.  Louisiana,  1858;  13  La. 
Ann.  367,  Spofford,  J., 
Vol.  II,  55 

Parham,  Woodruff  vs.  See 
Wfiodriiff  vs.  Parham. 

Parknian,  The  Ship.  See  Ship 
Parkman,  'The. 

Parks,  King  vs.  See  King  vs. 
Parks. 

Parlement  Beige,  Tlie.  Court 
of  Appeal  (Gt.  Britain), 
1880;  5  Probate  Div.  197;  42 
Law  Times,  273;  28  W.  R. 
642,  Brett,  L.  J.,  Vol.  I,  207 

Parrot,  In  re  Tiburcio. 
U.  S.  Cir.  Ct.  Cala.  1880; 
6  Sawyer,  349,  Hoffman 
and  Sawyer,  JJ.,  Vol.  II,         28 

Passenger  Cases  (Cited 
collectively).  See  Smith 
vs.  Turner,  Norris  vs.  City 
of  Boston,  Vol.  II,       51,  59,  349 

Passenger  Cases.  See  Hender- 
son vs.  Mayor  of  New  York. 
Neio  York  vs.  Miln.  Norris 
vs.  City  of  Boston.  Smith 
vs.     Turner. 

Patten,  United  States  vs.  See 
United  States  vs.  Patten. 

Patterson  vs.  Jenks.  U.  S. 
Sup.  Ct.  1829:  2  Peters,  216, 
Marshall,  Ch.  J.,  Vol.  11,    213 

Patterson,  Hall  vs.  See  Hall 
vs.  Patterson. 

Panlinson  vs.  United  States. 
See  Cnldcra  Case's. 

Pawashick,  The.  U.  S.  Dist. 
Ct.  Mass.  1872;  2  Lowell, 
142,  Lowell,  J.,  Vol.  II,         330 

Pawlett,  Society  for  the  Prop- 
agation of  the  Gospel  vs. 
See  Society  &e.  vs.  Pawlett. 

Payne,  Phillips  vs.  See  Phillips 
vs.  Payne. 

Payne,  United  States  vs.  See 
tfnited     States      vs.     Payne 

Peabody  vs.  United  States. 
U.  S.  Sup.  Ct.  1900;  175 
U.  S.  546,  Peckham,  J.,  Vol. 
11,  194 

Peacock  vs.  Hawaii  &c.  Sup. 
Ct.  Hawaii,  1899;  12  Hawaii, 
27,  Frear,  J.,  Vol.  I,  220 


Ixxviii 


TABLE   OF   CASES. 


Page 
Peaslce,  Stairs  vs.     See  Stairs 

vs.  Peaslee. 
Peck  vs.  Miami  County  Com- 
missioners,    u.  y.    Oil',  ct. 

Kansas,  ISTU;  4  Dillon,  oTl, 
Fed.  Cas.  108'Jl,  Dillon,  J., 
Vol.  II,  214 

Peck,  Fletcher  vs.  See  Fletcher 
vs.  Peek. 

Peck,  Steinauian  vs.  See 
.'^teinninan  vs.  Peck. 

Pederson,  In  re.  U.  S.  Dist. 
(Jc.  S.  D.  X.  Y.  1851;  Fed. 
Cas.  10St)9a,  Betts,  J.,  Vol. 
II,  266 

Perjgy,  The  Schooner,  United 
States  vs.  See  United  States 
vs.  Schooner  Pegoy. 

Pena,  United  States  vs.  See 
United  States  vs.  Pena. 

Penhallow  vs.  Doane.  U.  S. 
Slip.  ct.  1795;  3  Dallas,  54, 
Pattekson,  Blaib,  Cush- 
ING,  JJ.,  Vol.  I.  i':'.8.  246,  536,  543 

Penn  vs.  Lord  Baltimore. 
High  Ct.  ot  Chancery,  1750; 
1  Vesey  Sen.  445,  Hakd- 
■WICKE,    Ld.    Chan.,  Vol.  I,    554 

557 
Vol.  II,  166,  295 

Pennock  vs.  Franklin  Co. 
Commissioners.  U.  S.  Sup. 
Ct.  18s0;  103  U.  S.  44,  Field, 
.].,  Vol.  II,  214 

Pennsylvania  vs.  Wheeling: 
BridVe  Co.  U.  S.  Sup.  Ct. 
1855;  18  Howard,  421-460, 
Nelson,  J.,  Vol.  I,  546 

Pennftt/lvania,  BelPs  Gap  R.  R. 
Co.  vs.  See  Bell'' a  Gap  R.  R. 
Co.  vs.  Pennfii/ivania. 

Pennsylvania,  Phila.  &  South- 
ern S.  S.  Co.  vs.  See  Phila.  & 
Southern  S.  S.  Co.  vs.  Penn- 
sylvania. 

Pennsyhania,  Prir/g  vs.  See 
Prigg  vs.  Pennsylvania. 

People  vs.  Compaguie  Gen- 
erate &c.  U.  S.  Sup.  Ct. 
1882;  107  U.  S.  59,  Mil- 
ler, J.,  Vol.  II,  50 

People  (Cala.)  vs.  Gerke. 
Sup.  Ct.  Cala.  1855;  5  Cala. 
381,  Heydexfelt  and  Bry- 
an, JJ.,  Vol.  II,  42,  59,  60 

People  (Cala.)  vs.  Naglee. 
Sup.  Ct.  Cala.  1850;  1  Cala. 
232,  Bennett,  J..  Vol.  II.         .59 

People  (Cala.)  vs.  Washing- 
ton.   Sup.  Ct.  Cala.  1869;  36 


Page 
Cala.     658,      Rhodes,     J., 
Vol.  II.  60 

People  (Michigan)  vs.  Tyler. 

Sup.    Ct.  Mich;  7  Micli.  161, 
Campbell,  J.,  Vol.  II,  317 

People  (jV.  Y.)  vs.  Couklin. 
N.  Y.  Sup.  Ct.  1841;  2  Hill, 
67,  Bronson,  J.,  Vol.  II,  38 

People  (N.  1.)  vs.   McLeod. 
N.  Y.  Sup.  Ct.  1841;  25  Wen- 
dell, 483,  Cowen,  J.,  Vol.  I,   143 
145,  161 

People  (N.  Y.)  vs.  Warren. 
Superior  Ct.  Buffalo,  X.  Y. 
189.);  13  Misc.  N.  Y.  615, 
White,  J.,  Vol.  II,  37 

People  (N.  Y.),  Canal  Ap- 
praisers vs.  See  Canal  Ap- 
praisers vs.  Peoplf. 

People  ( N.  Y. )  ex  rel.  Barlow. 
vs.  Curtis.  N.  Y.  Ct.  of  Ap- 
peals, 1872;  50  N.  Y.  321, 
Church,  Ch.  J.,  Vol.  I,  37 

Vol.  II,  248,  270 

People  ( N.  Y. )  ex  rel.  Young 
vs.  stout.  X.  Y.  Sup.  Ct. 
1894;  81  Hun,  336,  Brad- 
ley, J.,  Vol.  II,  266,  275 

Pepke,  Claimant  of  Fourteen 
Diamonds  Rings.  See  Four- 
teen Diamond  Rings. 

Percheman,  United  States  vs. 
See  United  States  vs.  Perche- 
man. 

Permoli     vs.     Municipality. 
U.  S.  Sup.    Ct.  1845;  3  How. 
589,  Catron,  J.,  Vol.  I,  540,  543 
Vol.  II,  ,  165 

Pervear  vs.  Commonwealth. 
U.  S.  Sup.  Ct.  1866;  5  Wal- 
lace, 475,  Chase,  Ch.  J., 
Vol.  I,  543,  546 

Petition,  KennetVs.  See  Ken- 
netVs  Petition. 

Phelps  vs.  McDonald.  U.  S. 
Sup.  Ct.  1876;  99  U.  S.  298, 
Swayne,  J.,  Vol.  II,  292 

Phelps,  St.  Paul  &c.  Ry.  Co. 
vs.  See  St.  Paul  &c.  Ry.  Co. 
vs.  Phelps. 

Philadelphia  and  Reading 
R.  R.  Co.  vs.  Kenney.  U.  S. 
Cii-,  Ct.  Penna.  1873:  18  Int. 
Rev.  Rec.  92,  McKenna,  J., 
Vol.  I.  547 

Philadelphia  and  Trenton  R. 
R.  Co.  vs.  Stimpson.  U.  S. 
Sup.  ct.  1840:  14  Peters,  448, 
Story,  J.,  Vol.  II,  98 

Philadelphia,    Board    of  Port 


TABLE    OF   CASES. 


Ixxix 


Page 
Wardens,     C'ooley    vs.       See 
Cooley   vs.     Board   of    Port 
WardenH. 

Philadelphia,  Gilinan  vs.  See 
Gihnan  vs.  Philadelphia. 

Philadelphia  Southern  S.  S. 
Co.  vs.  Pennsylvania.  IJ.  S. 
Sup.  Ct.  1887;  122  U.  S.  326, 
Bkadley,  J.,  Vol.  11,  51 

Philippine  Tariff  Cane.  See 
Fourteen  Diamond  Rinr/s. 

Phillips  vs.  Payne.  U.  S. 
Sup.  Ct.  1875;  92  U.  S.  130, 
S WAYNE,  J.,  Vol.  I,  536,  544 

Vol.  II,  361 

Phoenix  Ins.  Co.,  Liverpool 
Steam  Co.  vs.  See  Liver- 
pool Steam  Co.  vs.  Phoenix 
Ins.  Co. 

Pickering,  Lomax  vs.  See 
Lomax  vs.  Pickering. 

Pierce  vs.  Neio  Hampshire. 
See  License  Cases. 

Pillerin,  United  States  vs.  See 
United  States  vs.  Pillerin. 

Pilotage  [Porto  liico)  Case. 
See  IIuus  vs.  N.  Y.  &  Porto 
Bico  S.  S.  Co. 

Pilot,  The.  U.  S.  Ci  r.  Ct.  App. 
9tli  Cir.  1892;  7  U.  S.  App. 
188,  GriLBERT,  J.,  reversing 
same  case  IJ.  S.  Dist.  Ct. 
Washington,  1891,  48  Fed. 
Rep.  319,  Handford,  J., 
Vol.  II,  83 

Piper,  Broion  vs.  See  Brown 
vs.  Piper. 

Pitot,  Sere  vs.  See  <Se?-e  vs. 
Pilot, 

Pittsburg-  and  Sou.  Coal  Co. 
vs.  Bates.  U.  S.  Sup.  Ct. 
1895;  156U.  S.  577,FiELD,  J., 
Vol.  I,  547 

Pizarro,  The.  U.  S.  Sup.  Ct. 
1817;  2  Wheaton,  227, 
Story,  J.,  Vol.  I,      .551,  552,  557 

Police  Jury  of  Concordia,  Da- 
vis vs.  See  Davis  vs.  Police 
Jury  of  Concordia. 

Polk,  Best  vs.  See  Best  vs. 
Polk, 

Pollard  vs.  Haaran.  IT.  S. 
Sup.  Ct.  1845;  3  Howard,  212, 
McKiNLEY,  J.,  Vol.  I,  538 

539,  553,  554,  559 
Vol.  II,  18,  159,  Kio,  282,  318 

Pollard's    Heirs   vs.    Kihhe. 
U.  S.  Sup.  Ct.  1840;  14  Peters, 
353,  Thompson,  J.,  Vol.  I,      470 
538,  539,  544,  554,  559 


Page 
Vol.  II,  18,  20,  159,  165,  361 

Pollard's    Lessee    vs.    Files. 

U.  S.  Sup.  Ct.   1844;  2   lIt)W- 
ard,  591,  Catron,  J.,  Vol.  11,     18 

159 

Pollock    vs.    Fanners    Loan 
&  T.  Co.  (Income Tax  Case). 
U.  S.  Sup.  Ct.  1895;  157  U.  S. 
429,  Fuller,  Ch.  J.,  Vol.  I,  541 
544,  547 
Vol.  II,  3,  361 

Pon^  Ah  Chee,  In  re.  U.  S. 
Uist.  Ct.  Colo.  1883;  18  Fed. 
Rep.  527,  Hoffman,  J.,  Vol. 
II  114 

Porter,  Benner  vs.  See  Ben- 
ner  vs.  Porter. 

Porter,  Jackson  vs.  See  Jack- 
son vs.  Porter. 

Porterfleld's  Exrs.  vs.  Clark. 
U.  S.  Sup.  Ct.  1844;  2  How- 
ard, 76,  Catron,  J.,  Vol.  II,  221 

Portland,  City  of.  Baker  vs. 
See  Baker  vs.  City  of  Port- 
land. 

Porto  Rico  Pilotage  Case.  See 
Huns  vs.  N.  Y.  &  Porto  Rico 
S.  S.  Co. 

Porto  Rico  Tariff  Cases.  See 
Armstrong  vs.  United  States. 
l)e  Limavs.  Bidwell.  Dooley, 
Smith  <&  Co.  vs.  United 
States,  No.  1.  Dooley,  Smith 
&  Co.  vs.  United  States,  No. 
2.  Dnwnes  vs.  Bidwell. 
Goetze  vs.  United  States. 

Portuguese  Tonnage  Case.  See 
Oldfield  vs.  Marriott. 

Port  Wardens,  Board  of, 
Cooley  vs.  See  Cooley  vs. 
Board  of  Port  Wardens. 

Post  Master  General  vs. 
Early.  U.  S.  Sup.  Ct. 
1827;  12  Wheaton,  1.36,  Mar- 
shall, Ch,  J.,  Vol.  I,  545 

Potawatamie  Indians  vs.  Uni- 
ted States.  See  Pam-to-pee 
vs.  United  States. 

Powers  vs.  Barney.  U.  S.  Cir. 
Ct.  S.  D.  N.  y.  1863;  5  Blntch- 
ford,  202,  Nelson,  J.,  Vol.  I,  547 

Powers  vs.  Comly.  U.  S.  Sup. 
Ct.  1879;  101  IJ.  S.  789, 
Waite,  Ch.  J.,  Vol.  11,  73 

Poydras  vs.  Treasurer  &c.  of 
Louisiana.  U.  S.  Sup.  Ct. 
1855;  18  Howard,  192,  Mc- 
Lean, J.,  Vol,  II,  52 

Poydran,  State  of  Louisiana,  vs. 
See  State  of  Louisiana,   vs. 


Ixxx 


TABLE   OF   CASES. 


Page 
Pof/dras. 
Preston  vs.  Browder.      U.  S. 

Ml  p.  Ct.  181G;  1  Wlieaton, 
11."),  Toi)i>.  .1..  Vol.  II,  214 

Provost  vs.  Greueaiix.  U.  S. 
8up.  Ot.  1S50;  19  Howard,  1, 
Taney,  Cli.  J.,  Vol.  11,       51,  54 

Pridijeoti,  United  6t(ites  vs. 
See  United  States  vs.  Pridye- 
<>n. 

Pri^g  vs.  Penusylvania  i  Fug^- 
itive  Slare  law).  U.  S.  8up. 
Ct.  1841':  16  Peters,  589, 
Stoky,  J.,  Vol.  I,      536,  541,  543 

Prize  Cases,  The.  U.  S.  Sup. 
Ct.  18u2;  2  Black,  635, 
Gkiek,  J.,  Vol.  II,  124,  126 

Propagation  of  the  Gospel, 
Society  for.  See  Society  for 
the  Prnpfn/afioiL  if  the  Gospel. 

Provincial  Fisheries,  In  re. 
Slip.  Ct.  Canada,  189.J;  26 
Can.  Sup.  Cc.  444,  Sir  Henry 
Strong,  Taschereau, 

GWYNNE,       GiROUARD,       J  J. 

Vol.  II,  320 

Quah,   Sah,    case   of.     See  Sah 

QuaVs  case. 
Quarantine  Cases.     Compagnie 

Francaise  vs.  State  Board  of 

Health.      Minn.  &    St.  P.  R. 

R.  Co.  vs.  Milner.     Morgan  S. 

S.    Co.  vs.  Board  of  Health, 

La.      People   vs.    Compagnie 

Gmerale. 
Quarles,  In  re.    U.  S.  Sup.  Ct. 

1895;  108  U.  S.  532,  Gray,  J., 

Vol.  I,  537,  551 

Queue,  The  Chinese  Case.    See 

Ho-Ah-Koio  vs.  Nunan. 
Quimby,  United  States  vs.     See 

United  States  vs.  Qnimby. 
Quock  Ting  vs.  United  States. 

U.  S.  Sup.  Ct.  1891;  140  U.  S. 

417,  Field,  J.,  Vol.  II.  113 

Quong  Woo,  In  re.     See  United 

States  vs.  Quong  Woo. 
Quong    Woo,  United  States  vs. 

See  United    States  vs.  Quong 

Woo. 
Rahasse,  Succession  of.    Sup. 

Ct.  Louis'a,  1>95;  47  La.  Ann. 

112*;  &  1452.  Miller,  J.:  and 

1897,      49     La.     Ann.     1405, 

NiCHOLLS.  Ch.  J.,  Vol.  II,   53,  55 
Race  Horse,  In  re.    U.  S.  Cir. 

Ct.  Wyoming,   1895;  70  Fed. 

Eep.  598,  RiNER,  J.,  reversed 

sub  nomine  Ward  vs.  Race 

Horse.     U.  S.  Sup.  Ct.  1896; 


Page 
163  U.   8.   504,   White,    J., 
Vol.  II,         33,  34,  63,  86,  130,132 
133,  134,  214 

Race  Horse,  Ward  vs.  See 
Ward  vs.  Race  Horse. 

Radford,  Craig  vs.  See  Craig 
vs.  Radford. 

Rahrer,  In  re.  U.  S.  Snp.  Ct. 
1891;  14U  U.  S.  545,  Fuller, 
Cli.  J.,  Vol.  II,  51 

Ra/itjen's  tfcc.  Co.,  HolzapfeVs 
&c.  Co.  vs.  See  HolzapffVs 
&c.  Co.  vs.  Rahtjen's  &c.  Co. 

Railroad  Co.,  Dennick  vs.  See 
Bennick  vs.  R.  R.  Co. 

Railroad  Companies.  See  Bell 
vs.  All.  &  Pac.  R.  R.  Co. 
BelVs  Gap  R.  R.  Co.  vs. 
Pennsyhania.  Buffalo  R.  & 
P.  R.  R.  Co.  v.s.  Larery. 
Butiz  \s,.  Northern  Pacific  R. 
R.  Co.  Capital  'Traction  Co. 
vs.  Hif.  Cherokee  Nation  vs. 
Southern  Kansas  Ry.  Co. 
Chicago,  Milmaukee  <fcc.  R. 
R.  Co.  vs.  Tompkins.  Chicago, 
Rock  Island  and  Pac.  R.  R. 
Co.  \s.  McGlinn.  IJennick\s. 
R.  R.  Co.  Fort  Leavenworth 
R.  R.  Co.  vs.  Lowe.  Herman 
vs.  Nevj  Orleans  R.  R.  Co. 
Huhgh  vs.  Nexo  Orleans  R.  R. 
Co.  IlUyiois  Cent.  R.  R.  Co. 
vs.  Illinois.  Leatenworth  &e. 
R.  R.  Co.  vs.  United  States. 
Metropolitan  R.  R.  Co.  vs. 
List,  of  Col.  Minn.  &  St.  P. 
R.  R.  vs.  Milner..  Missouri, 
K.  &  T.  R.  R.  Co.  vs.  Roberts. 
Missouri,  K.  &  T.  R  R.  Co.  vs. 
United  Stales.  Phila.  & 
Reading  R.  R.  Co.  vs.  Ken- 
ney.  Phila.  (fc  'Trenton  R.  R. 
Co.  vs.  Stiinpson.  Pittsburgh 
&  Southern  Coal  Co.  vs.  Bates. 
St.  Paul  &c.  Ry.  Co.  vs. 
Phelps.  Stroud  vs.  Missouri 
River  R.  R.  Co.  United 
States  vs.  Joint  Traffic  Assn. 
United  States  \s.  Union  Pa- 
cific Ry.  Co.  Utah  ifc  Nor. 
R.  R.  Co.  vs.  Fisher. 

Ramsey,  Murphy  vs.  See  Mur- 
phy vs.  Ramsey. 

Rnuscher,  United  States  vs. 
See  United  States  vs.  Raus- 
cher. 

Rayesies  vs.  United  States. 
U.  S.  Cir.  Ct.  Al:il)ama,  1889; 
37  Fed.  Piep.  447,  Pardee,  J., 


TABLE   OF   CASES. 


Ixxxi 


Page 

Vol.  I,  548 

Raymond  vs.  Thomas.    U.  S. 

Sup.  Cl.    187.");  !»1    U.   S.   712, 

JSWAYNK,  J.,  Vol.  I,  500,  551 

Re((l  Estate  Co.,  Beck  vs.     See 

Floiirnoi/  &<:.  Co.  vs.  Beck. 
Rcaltf/   Co.,    United   State.'i   vs. 

See  United  States  vs.   Realty 

Co. 
Reeder,   Crane  vs.      See  Crane 

vs.  Reeder. 
Reid,    Webster  vs.      See     Web- 
ster vs.  Reid. 
Reillij,    Roberts   vs.     See    Rob- 
erts vs.  Reilhj. 
Reliiitz,  In  re.    U.  S.  Cir.  Ct. 

S.   I).    N.    y.    1889;    39    Fed. 

Kep.   204,   Brown,    J.,   Vol. 

II,  266,  275 

Rent  (  Tory)  Case.     See  Rutyers 

vs.  Waildin'jton. 
Repentiiiny,    United  States  vs. 

See   United  States  vs.  Repen- 

ti'iny. 
Republic    Francalse,    La   vs. 

Sehultz.    U.  S.  Cir.  Ct.  S.  D. 

AT.  Y.  1893;  57  Fed.   Kep.  37, 

TOWNSEND,  J.,  Vol.  II,  328 

Republic  of  Haivaii,  Leivis  vs. 

See  Lewis  vs.  Hawaii. 
Republic   of  Hawaii,    Peacock 

vs.    See  Peacock  vs.  Hawaii, 

tfcc. 
Respiiblica     vs.     De     Long^- 

champs.    Oyer  &   Tenniner, 

Phila.,  1784;    1    Dallas,    111, 

McKean,  J.,  Vol.  II,  189 

Respublica  vs.  Gordon.    Sup. 

Ct.    Petina.    1788;    1    Dallas, 

252,   McKean,   Ch.   J.,    Vol. 

II,  46,  79,  83 

Respublica  vs.  Sweers.    Sup. 

Ct.    Peima.    1779;    1   Dallas, 

45,  McKean,  Ch.  J.,  Vol.  I,  537 

543 
Reynes,  United  States  vs.      See 

Unitrd  State.'i  vs.  Rei/ws. 
Reynolds  vs.  United   States. 

U.     S.  Sup.  Ct.    1878;  98    U. 

S.  145,  Waite,  Ch.  J.,  Vol.  I,  539 

Ret/nolds,  Richtervs.  See  Rich- 
ter  vs.  Reynolds. 

Rliode  Island  vs.  Massachu- 
setts. U.  S.  Sup.  Ct.  1838; 
12  Peters,  657,  Baldw^in,  J., 
Vol.  I,  537,  544 

Vol.  II,  361 

Rhode  Islarid,  Fletcher  vs.  See 
License  Cases. 


Page 

Rhodes  vs.  Iowa.  U.  S.  Sup. 
Ct.  1898;  170  U.  S.  412, 
White,  J.,  Vol.  I,  547,  548 

Rhodes,  United  States  vs.  See 
United  States  vs.  Rhodes. 

Bice,  United  States  vs.  See 
United  State.'i  vs.  Rice. 

Richter  vs.  Reynolds.  U.  S. 
Cir.  Ct.  App.  3d  Cir.  1893; 
17  U.  S.  App.  427,  Dallas, 
J.,  Vol.  II,  327 

Ridg'way  vs.  Hays.  U.  S.  Cir. 
Ct.  Dist.  of  Col.  1836;  5 
C ranch,  23,  Cbanch,  Ch.  J., 
Vol.  II,  298 

Riggs,  Geofroy  vs.  See  Geofroy 
vs.  Riggs. 

Rio  Arriba  L.  &  C.  Co.  vs. 
United  States.  U.  S.  Sup. 
Ct.  1897;  167  U.  S.  298,  Ful- 
ler, Ch.  J.,  Vol.  II,  181 

Rio  Grande  Dam  &c.  Co.,  Uni- 
ted States  vs.  See  tfnited 
States  vs.  Rio  Grande  Dam 
&r.  Co. 

Risch,  In  re.  U.  S.  Dist.  Ct. 
Texas,  1888;  36  Fed.  Rep. 
546,  Sabin,  J.,  Vol.  II,  266 

Ritchie,  United  States  vs.  See 
United  States  vs.  Ritchie. 

Rixner's  Succession.  Sup. 
Ct.  Louis'a,  1896;  48  L.  Ann. 
.552,  Watkins,  J.,  Vol.  II,        54 

Robbins  vs.  Shelby  Taxing- 
District.  U.  S.  Sup.  Ct. 
1887;  120  U.  S.  489,  Bbad- 
LKY,  J.,  Vol.  I,  547 

Roberts  vs.  Reilly.  U.  S.  Sup. 
Ct.  1885;  116  U.  S.  80,  Mat- 
thews, J.,  Vol.  I.,  539 

Roberts  vs.  United  States. 
U.  S.  Ct.  Claims,  1  Devereux, 
31,  Blackford,  J.,  Vol.  II,     298 

Roberta,  Mismuri,  K.  &  T.  R.  B. 
Co.  vs.     See  Missouri,  K.  &  T. 
B.  B.  Co.  vs.  Boberts. 

Boberts,  Standley  vs.  See  Stand- 
ley  vs.  Boberts. 

Robertson  vs.  Baldwin.  U.  S. 
Sup.  Ct.  1897;  165  U.  S.  275, 
Brown,  J.,  Vol.  I,  541 

Bobertson,  Bartram  vs.  See 
Bartram  vs.  Bobertson. 

Bobertson,  Edye  vs.  See  Edye 
vs.  Bobertson  or  Head  Money 
Cases. 

Bobertson,  Netherclift  vs. 
See  Netherclift  vs.  Bobertson. 

Bobertson,  Whitney  vs.  See 
Whitney  vs.  Bobertson. 


Ixxxii 


TABLE   OF   CASES. 


Page 

Robins  {Nash  alias),  United 
Statesys.  See  United  States 
vs.  Nash  (alias  liobins). 

Robiuson  vs.  Caldwell.  U.  S. 
Cir.  Ct.  App.  9tli  Cir.  1895; 
1.".)  U.  S.  App.  4GS,  GiL- 
HKHT,  J.,  Vol.  II,  207 

Koboiiam's  Heiis  vs.  Bobo« 

uaiu's      Exrs.      Sup.      Ct. 

Liiiiisiana,  1838;  12  La.   (O. 

S. )  73,  Martin,  J.,  Vol.  II,      54 
liorhester.      Blight      vs.      See 

Blitjhl  vs.  Rochester. 
Rodgers,  United  States  vs.  See 

United    States    vs.    Rodgers 

(two  cases). 
Rodriguez,  In  re.    U.  S.  Dist. 

Ct.  Texas,  1897;  81  Fed.  Rep. 

337,  Maxey,  J.,  Vol.  II,  83 

Rogers,  United  States  vs.    See 

United  States  vs.  Rogers. 
Roland,  Ladiga  vs.     See  Lad- 

iga  vs.  Roland. 
Ropes  vs.  Clinch.    U.  S.  Cir. 

Ct.    S.    D.    N.    Y.    1871;    8 

Blatchford,    304;    Fed.    Cas. 

12,041,  Woodruff,  J.,Vo1.  II,     74 
Rose  vs.  Himeley.    U.  S.  Sup. 

Ct.  1808;  4  Cranch,  241,  Mar- 
shall, Ch.  J.,  Vol.  I,       537,  544 
551,  552 

Vol.  II,  358,  361 

Rose,    United    States   vs.     See 

United  States  vs.  Rose. 
Roselius,  United  States  vs.    See 

United  States  vs.  Roselius. 
Ross  vs.  Eells.     U.  S.  Cir.  Ct. 

Washington,  1893;    56    Fed. 

Rep.    855,    Handford,     J., 

Vol.  II,  225 

Ross  vs.  United  States.    U.  S. 

Ct.  of  Claims,  1894;  29  Ct.  of 

Clras.  176,  Richardson,  Ch. 

J. 
Ross,  Bauman  vs.     See    Bau- 

nian  vs.  Ross. 
Ross,   Eells  vs.     See    Eells  vs. 

Ross. 
Ross,  Ex  parte.    U.  S.  Dist. 

Ct.  Ohio,  18C)9;  2  Bond,  252; 

Fed.  Cas.  12,069,  Leavitt,  J., 

Vol.  II,  267 

Ross,  In  re.    U.  S.  Sup.  Ct. 

1891;  140  U.  S.  453,  Field,  J., 

Vol.  1,  54,  537,  541,  545,  552 

553,  556,  557,  559,  560 

Vol.  II,  64,  139,  140,  238,  333 

335,  345,  346 
Roth,  In  re.    U.  S.  Dist.  Ct. 

S.    D.    N.    Y.   1883;  15   Fed. 


Page 
Rep.  506,  Brown,  J.,  Vol.  II,  267 

Roulet,  Alexander  vs.     See  Al- 
exander vs.  Roulet. 
Roulet,  New  York  Ins.  Co.  vs. 

See  New   York  Ins.  Co.  vs. 

Roulet. 
Rowe,  In  re.    U.  S.  Cir.  Ct. 

8th  Cir.  Ct.  1896;  77  Fed.  Rep. 

161,  Caldwell,  J.,  Vol.  II,    267 
Ruiz,  Ornelas  vs.     See  Ornelas 

vs.  Ruiz. 
Ru.fsian    Deserter    Case.     See 

United  States,  &c.,  vs.  Alex- 

androff. 
Rutgers      vs.      Waddington 

(Tory  Rent  Case).    Mayor's 

Ct.  N.  Y.  City,  1784;  Vol.  II,    36 
Sah  Quah's  Case.    U.  S.  Dist. 

Ct.   Alaska,     1886;    31    Fed. 

Rep.  327,  Dawson,  J.,  Vol,  I,  554 
556,  557,  559,  562 

Vol.  II,  166,  168,  235 

Sailors  Snug  Harbor,  Ingiis  vs. 

See  Ingiis  vs.    Sailors    Snug 

Harbor. 
St.   Oloff,    The.    U.   S.   Dist. 

Ct.  1790;  2  Peters  Adm.  Rep. 

428,  Peters,  J.,  Vol.  II,  330,  331 
Si.     Oloff,     Weiburg    vs.     See 

Weib2irq  vs.  St.  Oloff. 
St.    Paul    &c.    Ry.    Co.    vs. 

Phelps.     U.     S.     Sup.     Ct. 

1890;  137  U.  S.  528,  Lamar, 

J.,  Vol.  II,  225 

Salamoni,  Feol  vs.  See  Feol  vs. 

Salamoni. 
Sala's  Succession.    Sup.    Ct. 

Louisiana,  1898;  50  La.  Ann. 

1009,      NiCHOLLS,      Ch.     J., 

Vol.  II,  55 

Sally  and  Cargo,  The.    U.  S. 
I      Cir.  Ct.  Mass.  1812;  1  Gallison, 

58,  Story,  J.,  Vol.  I,  548 

Sample,  Briggs  vs.    See  Briggs 
I      vs.  Sample. 

I  Sandford,  Scott  vs.     See  Scott 
1      vs.  Sandford. 
Sandoval,     United    States    vs. 

See    United   States   vs.    San- 
doval. 
San  Francisco  Duty  Case.     See 

Cross  vs.  Harrison. 
San  F-ancisco  Laundry  Cases. 

See  Chinese  Laundry  Cases. 
Santa    Fe,     United    States  vs. 

See  United  States  vs.   Santa 

Fe. 
Santa  Rita  L.  &  M.  Co.,  Astia- 

zaran    vs.     See    Astiazaran 

vs.  Santa  Rita  &c. 


TABLE   OF   CASES. 


Ixxxiii 


Page 
Santos,  I)os,  Ex  parte.   See  Dos 

Santus,  Ex  parte. 
Sarony,    Lithographic   Co.    vs. 

See  Lithographic  Co.  vs.  Sar- 

ony. 
Sariazin,  Lacroix  Fils  vs.     See 

Lncroix  Fils  vs.  Surrazin. 
Battler's  Case,  Lopez  t£.     See 

Lopez  &  Battler's  Case. 
Saiivinel,       Walker      vs.      See 

Walker  vs.  Sauvinel. 
Saviego,    McKinnnj    vs.      See 

McKinmy  vs.  Savicgo. 
Saxlehiier    vs.     Eisner,    &c. 

Hunyadi  Jauos  Water  Cases. 

U.   S.   (^ir.  Ct.  App.  2(i  Cir. 

1899;  63  U.  S.  App.  139,  La- 
combe,  J.,  Vol.  ir,  328 
Scharpf   vs.   Schmidt.     Sup. 

Ct.    Illinois,    1898;     172    111. 

255,  Cakter,  J.,  Vol.  II,  40 

Schmidt,      Scharpf     vs.       See 

Scharpf  vs.  Schmidt. 
Schooner  Exchange  vs.  McFad- 

den.     See  Exchange  vs.  Mc- 

Fdddeii. 
Schooner  Henry  and  Giista- 

VUS.     U.  S.  Ct.  Claims,  1890; 

3")  Ct.  Clms.  393,  Weldon,  J., 

Vol.  II,  284 

Schooner  Peggy,  United  States 

vs.     See     United    States   vs. 

Schooner  Pegr/y. 
Scliultze  vs.   Schultze.    Sup, 

Ct.    Illinois,    1893;    144    111. 

290,    McGruder,     J.,    Vol. 

II,  39,  44 

Schultz,  Republic  Francaise  vs. 

See    Republic    Francaise  vs. 

Schultz. 
Scotia,  The.    IT.  S.  Sup.  Ct. 

1871;       14       Wallace,      170, 

Strong,  J.,  Vol,  II,  189 

Scott  vs.  Jones.    U.   S.  Snp. 

Ct.    1847;   5    Howard,    343, 

Woodbury,  J.,  Vol.  I,  550 

Scott  vs.  Sandf  ord  { Dred  Scott 

case).     U.  S.  Sup.  Ct.  1856; 

19  Howard,  393,  Taney,  Ch. 

J.,  Vol.  I,  80,  471,  477,  489 

537,  538,  539,  541 
553,  554,  556,  557 

Vol.  II,  172,  173 

Scott,  Ex  parte.    Ct.  of  Kings 

Eetich,  1829;  9   B.  &  C.   446, 

Tenterden,  Ch.  J.,  Vol.  II,  278 
Secretary  of  State  Bayard,  An- 

gerica  vs.     See  Angerica  vs. 

Bayard. 
Secretary  of  Stale  Bayard  vs. 


Page 

United  States  ex  rel.  WJiite. 
See  Bayard  vs.  U.  S.  ex  rel. 
tfcc. 

Secretary  of  State  Blaine,  Uni- 
ted States  ex  rel.  Boynton  vs. 
See  United  States  ex  rel. 
Boynton  vs.  Blaine. 

Secretary  of  State  Frelinghuy- 
sen  vs.  Key.  See  Frelinghuy- 
sen  vs.  Key. 

Secretary  of  State  Madison, 
Marbury  vs.  See  Marbury 
vs.  Madison. 

Secretary  of  War  Stanton, 
Georgia  vs.  See  Georgia  vs. 
Stanton. 

Seneca  Nation  vs.  Christie. 
N.  Y.  Ct.  of  Appeals,  1891; 
126  N.  y.  122,  Andrews, 
Cli.  J.,  affirming  same  case, 
49  Hun,  524,  Bradley,  J., 
Vol.  II,  35,  207 

Sere  vs.  Pitot.  U.  S.  Sup.  Ct. 
1810;  6  Cranch,  332,  Mar- 
shall, Oil.  J.,  Vol.  I,  539 

Settlers  (Old),  United  States -vs. 
See  tinited  States  vs.  Old 
Settlers. 

Shakespeare  The,  Leavit  vs. 
See  Leavit  vs.  The  Shakes- 
peare. 

Shanks  vs.  Dupont.  IT.  S. 
Sup.  Ct,  1830;  3  Peters,  242, 
Story,  J,,  Vol.  I,      543,  557,  559 

561 
Vol.  II,  13,  179 

Sharpiess  vs.  The  Mayor. 
Sup.  Ct.  Penna.  1853;  21 
Penna.  St.  Hep.  147,  Black, 
Ch.  J.,  Vol.  I,  62 

Sheafe,  Commonwealth  vs.  See 
Commonwealth  vs.  Sheafe. 

Sheazle,  In  re  Thomas.  See 
British  Prisoners,  Tlie. 

Shelby  Taxing  District,  Rolibins 
vs.  See  Robbins  vs.  Shelby 
Taxing  District. 

Shepard  vs.  Nor.  West  Life 
Ins.  Co.  U.  S.  Cir.  Ct.  Mich- 
igan, 1889;  40  Fed.  Rep.  341, 
Brown,  J.,  Vol.  II,  217 

Shepard  vs.  Taylor.  U.  S, 
Sup,  Ct.  1831;  5  Peters,  675, 
Story,  J.,  Vol.  II,  298 

Sherman  vs.  United  States. 
U.  S.  Sup.  Ct.  1900;  178  U. 
S.  150,  Shiras,  J.,  Vol.  I,        647 

Sherry,  Miller  vs.  See  Miller 
vs.  Slier ry. 

Shibuya,    Jugiro,  In    re.      See 


Ixxxiv 


TABLE   OF   CASES. 


Page 

Juffiro,  In  re  Shibiiya. 
Ship  Apollo,  The.    U.  S.  Ct. 

ut    claims,    lUUO;    35    Ct.    of 

Clms.  411,  Peelle,  J.,  Vol. 

II.  284 

Ship  Betsey,  The.    U.  S.  Ct. 

(.1    Claims.    18S8;    23   Ct.    of 

Clms.  277,  NOTT,  J.,  Vol.  II,  284 
Ship  Concord,  The.    U.  S.  Ct. 

oi    Claims,    190U;    35    Ct.    of 

Cims.    432,    NoTT,    Cb.    J., 

Vol.  11,  284 

Ship  Gangres,  The.    U.  S.  Ct. 

of   Claims,    1890;   31    Ct.    of 

Clms.,    17,    Davis,   J.,    Vol. 

II.  284 

Ship  Jaue,  The.    U.  S.  Ct.  of 

Claims,  188!);  24  Ct.  of  Clms. 

74,  XoTT,  J.,  Vol.  II,  284 

Ship  Juliana,  The.    U.  S.  Ct. 

ot    Claims,    1900;   So    Ct.    of 

Clms.  400,  Peelle,  J.,  Vol. 

II,  284 

Ship  Parkmau,  The.   U.  S.  Ct. 

of   Claims,    1900;   35    Ct.    of 

Clms.  406,  Weldon,  J.,  Vol. 

II,  284 

Ship    Richmond   vs.    United 

States.     U.  >S.  Sup.  Ct.  1815; 

9  Cianch,    102,    Marshall, 

Cli.  .1..  Vol.  II,  278 

Sliiy  Star,  The.    U.  S.  Ct.  of 

Claims,     1900;     35     Ct.     of 

Clms.  387,  Weldon,  J.,  Vol. 

II.  284 

Ship  Tom,  The.    U.  S.  Ct.  of 
I    Claims,     1893:     29     Ct.     of 

Clms.,    68,    NoTT,    J.,    Vol. 

II,  284 

Ships,   names  of.    See   Vessels, 

names  of. 
Shively  vs.   Bowlby 

Sup.    Ct.    1894;    152 
Gray,  J.,  Vol.  I, 


U.   S. 
U.  S.  1, 
118,  129,  538 
539,  541 
159,  314 


Vol.  II, 
Shong'   Toon,    In    re.    U.  S. 

Dist.  Ct.  Cala.  1884;  10  Saw- 
ver,  268,  Hokfmax,  J., 
Vol.  II,  78 

Short  vs.  Deacon.  Sup.  Ct. 
Penna.  18l'3:  10  Sarg.  & 
Kawle,  125,  Tilghman,  Ch. 
J.,  Vol.  II,  270 

Shonp,  Opel  vs.  See  Opel  vs. 
Shoup. 

Sibbald,  United  States  vs.  See 
Uvifpd  States  vs.  Sibbald. 

Siebold,  Ex  parte.  U.  S.  Sup. 
Ct.    1879;     100    U.    S.    371, 


Bradley,  J.,  Vol.  I,       537,   543 
551,  556 

Silver  Bow  Co.,  Talbot  vs.  See 
Tal'iot  vs.  Silver  Bow  Co. 

Slaughterhouse  Cases.    U.  S. 
Sup.  Ct.  1812;  16  Wallace.  36, 
Miller,  J.,  Vol.  I,      53,  62,  537 
541,  543,  550,  556,  557,  583 
Vol.  II,  1,  56,  57,  58,  59 

Slidell  vs.  Grandjean.  U.  S. 
Sup.  Ct.  1883;  111  U.  S.  412, 
Field,  J.,  Vol.  II,  179 

Slooj)  Betsey,  Glass,  vs.  The. 
See  Glass  vs.  The  Sloop 
Betsey. 

Smith  vs.  State  of  Maryland. 
U.  S.  Sup.  Ct.  1810;  6C'raDcli, 
286,  Washington,  J.,  Vol.  I,  557 
Vol.  II,  16,  318 

Smith  vs.  Turner  (Passen- 
ger cases).  U.  S.  Sup.  Ct. 
1849;  7  Howard,  283,  Vol.  II,     51 

Smith  (Famous)  vs.  United 
States.  See  Famous  Smith 
vs.  United  States. 

Smith,  State  (So.  Car.)  vs. 
See  State  So.  Car.  vs.  Smith. 

Snrith,  Thoringtonvs.  See  Thor- 
ington  vs.  Smith. 

Snow  vs.  United  States.  U. 
S.  Sup.  Ct.  1873;  18  Wallace, 
317,  Bradley,  J.,  Vol.  I,       539 

Snug  Harbor,  Sailors\  Inglis 
vs.  See  Inglis  vs.  Sailors'' 
Snug  Harbor. 

Society  for  the  Propagation  of 
the  Gospel  vs.  Hartland. 
U.  S.  Cir.  Ct.  1814;  2  Payne, 
536;  Fed.  Cas.  13155,  Thomp- 
son, J.,  Vol.  II,  12 

Society  for  the  Propagation 
of  the  Gospel  vs.  Pawlett. 
U.  S.  Sup.  Ct.  1830;  4  Peters, 
480,  Story,  ,J.,  Vol.  II,  12 

Society  for  the  Propagation  of 
the  Gospel  vs.  Town  of  New 
Hayen.  U.  S.  Sup.  ct.  1823; 
8  Wheaton,  464,  Washing- 
ton, J.,  Vol.  II.  12.  131,   146 

Society  for  the  Propagation 
of  the  Gospel  vs.  Wheeler. 
U.  S.  Cir.  Ct.  New  Hamp- 
shire, 1814;  2  Matthews,  105; 
Fed.  Cas.  13156,  Story,  J., 
Vol.  II,  12 

Society  for  the  Propagation  of 
the  Gospel,  State  of  Vermont 
vs.  See  State  of  Vermont  vs. 
Societi/.  tfcc. 

Soon     Hing     vs.      Crowley 


TABLE   OF   CASES. 


Ixxxv 


Page 

(Chinese  Laundry  Case). 
U.  S.  Sup.  Ct.  188.'j;  113  U. 
S.  703,  FlKLD,  J.,  Vol.  II,         131 

Soulard  vs.  United  States 
(Smith  vs.  Uiiited  States). 
U.  S.  Sup.  Ct.  1830;  4  Peters, 
511,  Makshall,  Cli.  J.,  and 
1836,  10  Petors,  100  and  326, 
Baldwin,  J.,  Vol.  I,  538,  554,  559 
Vol.  II,  147,  165,  178 

Southack,  Fox  vs.  See  Fox  vs. 
Southack. 

South  Carolina  Dispensanj 
Case.  See  Cantini  vs.  Till- 
man. 

South  Carolina,  State  of,  vs. 
Smith.  See  State  [So.  Car.) 
vs.  Smith. 

Southern  Kansua  liy.  Co.,  Cher- 
okee Nation  vs.  See  Chero- 
kee Nation  vs.  Southern  Kan- 
sas By.  Co. 

Spark,  Steqmer  vs.  Lee  Choi 
Chum.  See  Steamer  Spark 
vs.  Lee  Choi  Chum. 

Spies  vs.  Illinois  (Chicago 
Anarchist  case).  U.  S.  Sup. 
Ct.  1887;  123  U.  S.  131, 
Waite,  Ch.  J.,  Vol.  I,  543 

549,  55G,  557 
Vol.  II,  55,     56 

Spoliation  Claims.  See  French 
Spoliation  Caxes. 

Sprague  vs.  Thompson.  U. 
S.  Sup.  Ct.  1.-83;  118  U.  S. 
90,  Matthews,  J.,  Vol.  I,       548 

Sprague,  Broionvs.  See  Brown 
vs.  Sprar/ue. 

Spring'vilie  vs.  Thomas.  U. 
S.  Sup.  Ct.  1897;  166  U.  S. 
707,  Fuller,  Ch.  .J.,  Vol.  I,  539 

Sp!/buck,  Summers  vs.  See 
Summers  vs.  Spy  buck. 

Stairs  vs.  Peaslee.  U.  S. 
Sup.  Ct.  1855;  18  Howard, 
521,  Taney,  Ch.  J.,  Vol.  I,      167 

Standley  vs.  Roberts.  U.  S. 
(Mr.  Ct.  App.  8  Cir.  1894;  59 
Fed.  Rep.  836,  Sanborn,  J., 
Vol.  II,  221 

Stanton,  Georgia  vs.  See 
Georgia  vs.  Stanton. 

Star,  The  Ship.  See  Ship  Star, 
The. 

State  Board  of  Health,  Com- 
pagnie  Francatse  vs.  See 
Compa.gnie  Francatse  vs. 
State  Board  of  Health. 

State  of  Arkansas,  Beers  vs. 
See  Beers  vs.  State  of  Arkan- 
sas. 


Page 

State  of  Arkansas,  Wilbiirn  vs. 
See  \Vilbur7i  vs.  State  of  Ar- 
kansas. 

State  of  California,  Almy  vs. 
See  Almy  vs.  California. 

State  of  California,  Hurtado  vs. 
See  Hurtado  vs.  California. 

State  of  California,  McCall  vs. 
See  McCall  vs.  California. 

State  of  California,  People  of, 
vs.  Gerke.  See  People  vs. 
Gerke. 

State  of  California,  People  of, 
vs.  Naglee.  See  People  vs. 
Naglee. 

State  of  California,  People  of, 
vs.  Washington.  See  Peo- 
ple {Cala.)  vs.   Washington. 

State  of  Georgia  vs.  Brails- 
ford.  U.  S.  Sup.  Ct.  1794;  3 
Dallas,  1,  Jay,  Ch.  J.,  (aud 
otiier  justices),  Vol.  II,  11 

State  of  Georgia  vs.  Stanton. 
See  Georgia  vs.  Stanton. 

State  of  Georgia,  Cherokee  Na- 
tion vs.  See  Cherokee  Nation 
vs.  State  of  Georgia. 

State  of  Georgia,  Chisholm  vs. 
See  Chisholm  vs.  Georgia. 

State  of  Georgia,  Lascelles  vs. 
See  Lascelles  vs.  Georgia. 

State  of  Georgia,  Worcester  vs. 
See  Worcester  vs.  Georgia. 

State  of  Illinois,  Illinois  Cent. 
R.  R.  Co.  vs.  See  Illinois 
Cent.  R.  R.  Co.  vs.  Illinois. 

State  of  Illinois,  Ker  vs.  See 
Ker  vs.  State  of  Illinois. 

State  of  Illinois,  Moore  vs. 
See  Moore  vs.  Illinois. 

State  of  Illinois,  Mnnn  vs.  See 
Munn  vs.  Illinois. 

State  of  Illinois,  Spies  vs.  See 
Spies  vs.  Illinois. 

State  (Iowa)  vs.  Ross  and 
Maun.  Sup.  Ct.  Iowa,  1866; 
21  Iowa,  467,  Weight,  J., 
Vol.  II,  278 

State  of  Iowa,  Miner'' s  Bank  vs. 
See  Miner'' s  Bank  vs.  Iowa. 

State  of  Iowa,  Rhodes  vs.  See 
Rhodes  vs.  Iowa. 

State  of  Kentucky,  Crntcher  vs. 
See   Crntcher   vs.   Kentucky. 

State  of  Kentucky,  Ilauus  vs. 
See  CommomoeaWi  vs.  Hawes. 

State  of  Louisiana  vs.  Poy- 
dras.  Sup.  Ct.  La.  1854;  9 
La.  Ann.  165,  Campbell,  J., 
Vol.  II,  52 

State  of  Louisiana,  Frederick- 


Ixxxvi 


TABLE   OF  CASES. 


Page 
son  vs.     See  Frederickson  vs. 
Stiitt'  of  Lnitisiana. 

State  of  LoutHiaiKi,  Kennardvs. 
See  KetiiKird  vs.  Luuisiana. 

State  of  Luuisiana,  New  Hamp- 
shire vs.  See  New  Hamp- 
shire vs.  Louisiana. 

State  of  Louisiana,  New  York 
vs.  Same  as  New  Hampshire 
vs.  Louisiana. 

State  of  Louisiana,  Treas'r  of, 
Poydras  vs.  See  Poydras  vs. 
Treasurer  of  Louisiana. 

State  of  Maine  vs.  Newell. 
Sup.  Ct.  Maine,  1892;  84 
Maine,  465,  Emery,  J.,  Vol. 
II,  229 

State  of  Maryland,  Brown  vs. 
See  Brown  vs.  Maryland. 

State  of  Maryland,  McCulloch 
vs.  See  McCulloch  vs.  Mary- 
land. 

State  of  Maryland,  Smith  vs. 
See  Smith  vs.  State  of  Mary- 
land. 

State  of  Maryland  vs.  Warren. 
See  Maryland  vs.  Warren. 

State  of  Massachusetts,  Man- 
chester vs.  See  Manchester 
vs.  Massachusetts. 

State  of  3Iassachusefts,  Rhode 
Island  vs.  See  Rhode  Is- 
land vs.  Mass(tc}ius>-tts. 

State  of  Massachu.^etts,  Sheafe 
vs.  See  Commonwealth  vs. 
Sheafe. 

State  (f  Massachusetts,  Thurlow 
vs.     See  License  Cases. 

State  of  Michif/an, People  o/,  vs. 
Tyler.  See  People  {Mich.  )vs. 
Tyler. 

State  of  Minnesota  vs.  Camp- 
bell. Sup.  Ct.  Minn.  1893; 
53  Minn.  354,  Mitchell,  J., 
Vol.  II,  230 

State  of  Missouri  vs.  Andriano, 
See  Missouri  vs.  Andriano. 

State  (f  Missouri.  Brooks  vs. 
See  Brooks  vs.  Missouri. 

State  of  Missouri,  Cumin  ings  vs. 
See  Cumniin'js  vs.  Missouri. 

State  of  Missouri,  Eniert  vs. 
See  Emert  vs.  Missouri. 

State  of  Missouri  vs.  Lewis, 
See  Missouri  vs.  Lev:is. 

State  of  Nebraska,  Boyd  vs. 
See  Boyd  vs.  Nebraska. 

State   of  Nevada,  Crandall  vs. 

See  Crandall  vs.  Nevada. 
State    of  New    Hampshire  vs. 


Page 
Louisiana.     See  New  Hamp- 
shire vs.  Louisiana, 

State  of  New  Hampshire, 
Pierce  vs.    See  License  Cases. 

State  of  New  Jersey  vs.  Wil- 
son. U.  S.  Sup.  Ct.  1812;  7 
Crancli,  164,  Marshall,  Ch, 
J.,  Vol.  II,  230 

State  qt  New  Jersey,  Brown  vs. 
See  Brown  vs.  New  Jersey. 

State  of  New  York  vs.  Dibble. 
See  Cutler  vs.  Dibble. 

State  of  New  York  vs.  Louis- 
iana. Same  as  New  Hamp- 
shire vs.  Louisiana. 

State  of  New  York  (People  of), 
Canal  Appraisers  vs.  See 
Canal  Appraisers  vs.  People. 

State  of  New  York  [People)  vs. 
Conklin.  See  Peoj^le  (N.  Y.) 
vs.  Conklin. 

State  of  Neio  York,  People  &c. 
vs.  Curtis.  See  People  (N. 
Y.)  (tc,  vs.  Curtis. 

State  of  New  Yo7-k,  (  People  of,) 
vs.  McLeod.  See  People 
(N.  Y.)  vs.  McLeod. 

State  of  New  York,  People  &c. 
vs.  Stout.  See  People  (N. 
Y.)  &c.,  vs.  Stout. 

State  of  New  York,  People  of 
vs.  Warren.  See  People  (N. 
Y.)  vs.   ]Varren. 

State  (North  Dakota)  ex  rel. 
Tomptou  vs.  Douoyer.  Sup. 
Ct.  N.  Dak.  1897;  6  No.  Dak. 
586,  Bartholomew,  J.,  Vol. 
II,  214 

State  (Ohio)  vs.  Vanderpool. 
Sup.  Ct.  Ohio,  1883;  39  Oliio, 
273,  Johnson,  Ch.  J.,  Vol.  II,  271 

274 

State  of  Oregon,  Lane  vs.  See 
Lane  vs.  Oregon. 

State  of  Penna.  vs.  Wheeling 
Bridge  Co.  See  Pennsyl- 
vania vs.  Wheeling  Bridge 
Co. 

State  of  Penna.,  Bell's  Gap  R.  R. 
Co.  vs.  See  BeWs  Gap  R.  R. 
Co.  vs.  Pennsylvania. 

State  of  Penna.,  Phil  a.  & 
Southern  S.  S.  Co.  vs.  See 
Phda.  &  Southern  S.  S.  Co. 
vs.  Pennsylvania. 

State  of  Penna.,  Prigg  vs.  See 
Prigg  vs.  Pennsylvania. 

State  of  Rhode  Island  vs.  Mas- 
sachusetts. See  Rhode  Is- 
land vs.  Massachusetts. 


TABLE   OF  CASES. 


Ixxxvii 


Page 

State  of  Rhode  Island,  Fletcher 
vs.    See  License  Cases. 

State  (So.  Car.)  vs.  Smith. 
Ct.  Appeals,  ISo.  Car.  1829; 
1  Bailey,  So.  Car.  Law.  283; 
19  Am.  Decisions,  679, 
Johnson,  J.,  Vol.  II,  278 

State  of  Tenncsste,  Coleman 
vs.  See  Coleman  vs.  Ten- 
nessee. 

State  of  Tennessee  vs.  Davis. 
See  Tennessee  vs.  Davis. 

State  of  Tennessee,  Henderson 
vs.  See  Henderson  vs.  Ten- 
nessee. 

State  of  Tennessee,  Van  Broclc- 
lln  vs.  See  Van  Brocklin\s. 
State  oj  Tennessee. 

State  oj  Texas  vs.  White.  See 
Texas  vs.  White. 

State  of  Texas,  Asher  vs.  See 
Asher  vs.  Texas. 

State  {Texas),  Blandford  vs. 
See  Blandford  vs.  Slate. 

State  of  Texas,  United  States 
vs.  See  United  States  vs. 
Texas  (tw^o  cases). 

State  of  Texas,  White  vs.  See 
White  vs.  Texas. 

State  of  Utah,  Thompson  vs. 
See  Thompson  vs.  Utah. 

State  of  Vermont  vs.  Brews- 
ter. Sup.  Ct.  Vermont, 
1835;  7  Vt.  118,  Phelps,  J., 
Vol.  II,  278 

State  of  Vermont  vs.  Society 
for  the  Propagation  of  the 
Gospel.  U.  S.  Cir.  ct.  Ver- 
nioat.  Fed.  Cas.  16919  and 
16920,  1826,  Thompson,  J., 
Vol.  II,  12 

State  of  Vermont,  O'Neill  vs. 
See  0^  Neillvs.  Vermont. 

State  of  Virginia,  Cohens  vs. 
See  Cohens  vs.  Virginia. 

Steamboat  Company  vs. 
Livingston.  New  York  Ct. 
of  Errors,  1825 ;  3  Cowen,  713, 
Sandford  Chan.,  Vol.  I,         549 

Steamer  Sparli  vs.  Lee  Choi 
Chum.  U.  S.  Cir.  Ct.  Cal. 
1  Sawyer,  713,  Sawyer,  J., 
Vol.  II,  342 

Steamship  &c.  Companies.  Com- 
pagnie  Francaise  vs.  State 
Board  <f  Health.  Huus  vs. 
N.  T.  &  Porto  Rico  S.  S. 
Co.  Liverpool  t&c.  Stm.  Co. 
vs.  Phoenix  Ins.  Co.  Monon- 
gahtla  Nav.   Co.   vs.   United 


Page 

States.  Morgan  S.  S.  Co.  vs. 
La.  Board  of  Health.  New 
Orleans  vs.  Steamship  Co. 
North  German  Lloi/d  S.  S. 
Co.  vs.  Hedden.  North  Ger- 
man Lloyd  S.  S.  Co.  vs.  Ma- 
gone.  People  vs.  Compagnie 
Generate  &c.  Phila.  &  Sou. 
S.  S.  Co.  vs.  Pennsylvania. 
Steamboat  Co  vs.  Livingstone. 
Thingvalla  Line  vs.  United 
States. 

Stearns    vs.   United     States. 
U.   S.    Sup.  Ct.  1867;  6  Wal- 
lace, 589,  SwAYNE,  J.,  Vol.  I,  538 
551,  554 

Steele,  Lawton  vs.  See  Law- 
ton  vs.  Steele. 

Steele  Co.  {Illinois),  Budzisz 
vs.  See  Budzisz  vs.  Illinois 
Steel  Co. 

Stephens  vs.  Cherokee  Na- 
tion. U.  S.  Sup.  Ct.  1899; 
174  U.  S.  445,  Fuller, 
Ch.  J.,  Vol.  II,  202 

Sternaman  vs.  Peck.  U.  S. 
Cir.  Ct.  App.  2d  Cir.  1897; 
80  Fed.  Rep.  883,  Wallace, 
J.,  affirming  Ex  parte  Stern- 
aman. U.  S.  Dist.  Ct.  N.  D. 
N.  Y.  1896;  77  Fed.  Pvcp. 
595,  CoxE,  .J.,  reargument  de- 
nied, 83  Fed.  Rep.  690,  Vol.  II,  267 

Sternaman,  Ex  parte.  See 
Sternaman  vs.  Peck. 

Stevens  vs.  Thatcher.  Sup. 
Ct,  Maine,  1897;  9L  Maine,  70, 
Emery,  J.,  Vol.  II,  34,  214 

Stewart  vs.  Callaghan.  U.  S. 
Cir.  Ct.  Dist.  of  Col.  18:'.5; 
4  Crane h,  C.  C.  594,  Per 
Curiam,  Vol.  II,  298 

Stimpson,  Philadelphia  &  Tren- 
ton R.  R.  Co.  vs.  See  Phila- 
delphia &  Trenton  R.  R.  Co. 
vs.  Stini})Snn. 

Stoutenhergh  vs.  Hennick. 
U.  S.  Sup.  Ct.  1889;  129  U.  S. 
141,  Fuller,  Cli.  J.,  Vol.  1, 547, 583 

Stout,  People  N.  Y.  ex  ret. 
Young  YS.  See  People  (N.  Y.) 
&r.  vs.  Stout. 

Strader  vs.  Graham.  U.  S. 
Sup.  Ct.  1850;  10  Howard, 
98,  Taney,  Cli.  .7.,  Vol.  I,       539 

Strike  Cases.     See  In  re  Debs. 

Strother    vs.    Lncas.      U.   S. 
Sup.  Ct.  1832;  6  Peters,  763, 
Thompson,  J.,  Vol.  I,      538,  5:19 
553,  554,  559 


Ixxxviii 


TABLE   OF   CASES. 


Page 
Vol.  II,  165 

Stroud  vs.  Missouri  River  &c. 
R.  R.  Co.  U.  S.  Cir.  (Jt. 
Kansas,  187",  4  Dillon,  3<JG; 
Fed.  Cas.  13,547,  Dillon,  J., 
Vol.  II,  225 

Stuart  vs.  Laird.  U.  S.  Sup. 
Ct.  1803;  1  Cranch,  299, 
Paterson,  J.,  Vol.  1,  541 

Sturgeon,     United    States    vs.  . 
See   United  >f((fes  vs.  Stur- 
r/eon. 

St  urges  vs.  Crowuinsliield. 
U.  S.  Sup.  Ct.  1819;  4 
Wheaton,  122,  Marshall, 
Ch.  J.,  Vol.  I,  549 

Sturges  vs.  The  Collector  &c. 
U.  S.  Sup.  Ct.  1870;  12  Wal- 
lace, 19,  Clifford,  J.,  Vol.  II,  74 

Succession  of  Pargoud.  See 
Pargoud,  Succession  of. 

Succession  of  Babasse.  See 
Pabasse,  Succession  of. 

Succession  of  Rixner.  See 
Rixner^s  Succession. 

Succession  of  Sala.  See  Salads 
Succession. 

Suffolk  Iiis.  Co.,  Williams  vs. 
See  Williams  vs.  Suffolk  Ins. 
Co. 

Sugar,  Thirty  Hogsheads  of,  vs. 
Boyle.  See  Thirty  Hogs- 
heads (fee.  vs.  Boyle. 

Summers  vs.  Spybuck.  Sup. 
Ct.  Kansas,  18U3;  1  Kansas, 
394,  Cobb,  Cli.  J.,  Vol.  II,       217 

Sun  Mutual  Ins.  Co.  vs.  United 
States.     See  Caldera  Cases. 

Sunol,  United  States  vs.  See 
United  States  vs.  Sunol. 

Sulphur,  I).  &  M.  Co.,  Utah  M. 
&  Mfg.  Co.  vs.  See  Utah  M. 
&  Mfg.  Co.  vs.  Dickert  &  M. 
Sulphur  Co. 

Swan,  The.  U.  S.  Dist.  Ct. 
Washington,  1892;  oO  Fed. 
Rep.  108;  Hand  ford,  J., 
Vol.  I,  537,  557 

Swan,  The  James  G.,  United 
States  vs.  .See  United  States 
vs.  The  James  G.  Swan. 

Stveers,  Bepublica  vs.  See  Re- 
publica  vs.  Siveers. 

Taber  vs.  United  States.  U.  S. 
Cir.  Ct.  Mass.  1839;  1  Story, 
1.  Story,  J..  Vol.  I,  549 

Talbott  vs.  Janseu.  U  S. 
Sup.  Ct.  179.v;  3  Dallas,  133 
RUTLEDGE,  Ch.  J.,  Vol.  II,       124 

Talbott  vs.  Silver  Bow  Co. 


Page 
U.    S.    Sup.    Ct.    1891;     139 
U.    S.     438,     Brewer,     J., 
Vol.  I,  539,  547 

Taltan  vs.  Mayes.  U.  S.  Sup. 
Ct.  1896;  163  U.  S.  376, 
White,  J.,  Vol.  I,  562 

Vol.  II,  221,  231 

Tameiliug  vs.  U.  S.  Freehold 
and  Emigration  Co.  U.  S. 
Sup.  Ct.  1876;  93  U.  S.  644, 
Davis,  J.,  Vol.  II,  185 

Tampico  Duty  Case.  See  Flem- 
ing vs.  Page. 

Taylor  vs.  lirown.  U.  S.  Sup. 
Ct.  1893;  147  U.  S.  640, 
Fuller,  Ch.  J.,  Vol.  II,  34 

Taylor  vs.  Morton.  U.  S.  Cir. 
Ct.  Mass.  1855;  2  Curtis.  454, 
Curtis,  J.  Same  case  afiBi  med 
U.  S.  Sup.  Ct.  1862;  2  Black, 
481,  Clifford,  J.,  Vol.  I,  448 
544,  559,  560,  561 
Vol.  II,  63,  68,  69.  71,  72,  183,  361 

Taylor,  United  States  vs.  See 
United  States  vs.  Taylor. 

Tax  Cases.  See  License  Tax 
Cases,  The.  Emncltun  vs. 
Moore  (War  Bevenue  Tax). 
Philadelphia  S.  S.  S.  Co.  vs. 
Pennsylvania.  Pollock  vs. 
Farmers^  Loan  &  Trust  Co. 
( In  com  e  Tax  of  1894).  Veasie 
vs.  Moor  [State  Bank  Tax). 

Taxing  District,  Shelby,  Bobbins 
vs.  See  Bobbins  vs.  Shelby 
Taxing  District. 

Taylor,  Shepard  vs.  See  Shep- 
urd  vs.  Taylor. 

Tennessee  vs.  Davis.    U.  S. 
Sup.  Ct.  1879;  100U..S.  2.57, 
Strong,  J.,  Vol.  I,   537,  543,  551 
556,  557 

Tennessee,  Coleman  vs.  See 
Coleman  vs.  Tennessee. 

Tennessee,  Henderson  vs.  See 
Henderson  vs.  Tennessee. 

Tennessee,  State  of.  Van  Brock- 
Un  vs.  See  Van  Brocklin  vs. 
Tennessee. 

Territo)~y  of  Arizona,  Marsh  vs. 
See  Marsh  vs.  Arizona. 

Texas  vs.  White.    U.  S.  Sup, 
Ct.    1868;    7    Wallace,    700, 
Chase,  Ch.  J.,  Vol.  I,     250,  537 
541,  .543,  557 

Texas,  State  of,  Asher  vs.  See 
Asher  vs.  Texas. 

Texas.  State  of,  Blandford  vs. 
See  Blandford  vs.  State. 

Texas,    United  States  vs.     See 


TABLE   OF  CASES. 


Ixxxix 


Page 
United   States  vs.    Texas   (2 
cases). 

Thatcher,  Stevens  vs.  See 
Steveihs  vs.  Thatcher, 

Tiiayer,  Nebraska  ex  rel.,  Boyd 
vs.     See  Boyd  vs.  Nebraska. 

Tliebo  vs.  Choctaw  Tribe  of 
Indians.  U.  S.  Cir.  Ct.  Ap- 
peals, 8t,h  Cir.  189.j;  66  Fed. 
Kep.  372,  Caldwell,  J., 
Vol.  II,  219 

Thin^valla  Line  vs.  United 
States.  U.  S.  Ct.  Claims, 
1881);  24  Ct.  Clms.  2.")5,  KiCH- 
AHDsoN,  Ch.  J.,  Vol.  II,    77,  301 

Thirty  Hog-sheads  of  Sngar 
vs.  Boyle.  U.  S.  Sup.  Ct. 
1815;  y  Crancli,  191,  Mar- 
shall, Ch.  J.,  Vol.  I,      498,  5.51 

557 

Thomas  vs.  Gay.  U.  S.  Sup. 
Ct.  1898;  161)  U.  S.  264, 
Shiras,  J.,  Vol.  I,  539,  547 

Vol.  II,  86,  221 

Thomas  vs.  United  States. 
U.S.  ct.  Claims,  1  Devereux, 
29,  Blackford,  J.,  Vol.  II,    :>08 

Thomas,  Danfarth  vs.  See 
Daufnrfh  vs.  Thomas. 

Thomas,  In  re.  U.  S.  Dist. 
Ct.  8.  D.  N.  Y.  1874;  12 
Blatch.  370,  Fed.  Cas.  13,887, 
Blatchford,  J.,  Vol.  II,        267 

Tfiomas,  Raymond  vs.  See 
Raymond  vs.  Thomas. 

Th(>))ias,  Springvllle  vs.  See 
Sprinr/ville  vs.  Thomas. 

Thomas,  United  Stales  vs.  See 
United  States  vs.  Thomas. 

Thompson  vs.  Utah.  U.  S. 
Sup.  Ct.  1898;  170  U.  S.  343, 
Harlan,  J.,  Vol.  I,  539,  545 

550,  556 

Thompson,  Kilboiirn  vs.  See 
Kllbourn  vs.  Thompson. 

Thompson,  Sprague  vs.  See 
Sprague  vs.  Thompson. 

Thompson  vs.  The  Catherina. 
See  Catherina,  The. 

Thoi-ington  vs.  Smith.  U.  S. 
Sup.  Ct.  1868;  8  Wallace,  1, 
Chase,  Ch.  J.,  Vol.  I,  564 

Thorndike,  Law  vs.  See  Law 
vs.  Thorndike. 

Thorndike,  Lee,  Admx.,  vs.  See 
Lee,  Admx.,  vs.  Thorndike. 

Three  Friends,  The,  U.  S. 
Sup.  Ct.  1896;  166  U.  S.  1, 
Fuller,  Ch.  J.,  Vol.  II,  359 

Three    hundred    and    Jifty-six 


Bales  of  Cotton.  See  Am. 
Ins.  Co.  vs.  Canter. 

Thiirlowvs.  Massadiusettt<,  See 
License  Cases. 

Tiburcio  Parrott,  In  re.  See 
Parrott,  In  re  Tiburcio. 

Tillman,  Cantini  vs.  See  Gan- 
tini  vs.  Tillman. 

Tiiigi/,  Bas  vs.  See  Bas  vs. 
Tingy. 

Titusoille,  Brennan  vs.  See 
Brennan  vs.  Titusville. 

Tobacco  Factory,  United  States 
vs.  See  United  States  vs.  To- 
bacco Factory. 

Tobin  vs.  Wilkinshaw  (three 
cases).  U.  S.  Cir.  Ct.  Cala. 
1855  and  1856;  1  McAllister, 
26,  151,  186;  Fed.  Cas. 
14,0ii8-69-70,  McAllister, 
J.,  Vol.  II,  179 

Tompkins,  Chicago,  Mil.  <fec. 
R.  R.  Co.  vs.  See  C/ncago, 
Mil.  tfcc.  R.  R.  Co.  vs.  Tomp- 
kins. 

Tompton,  State  &c.  vs.  Bono- 
yer.  See  State  (Nor.  Dak.) 
vs.  Bonoyer. 

Tom  Yum,  In  re.  U  S.  Dist. 
Ct.  Cala.  1894;  64  Fed.  Rep. 
485,  Morrow,  J.,  Vol.  II,        119 

Toombs,  Hornbuckle  vs.  See 
Hornbuckle  vs.   Toombs. 

Toj)eka,  Loan  Ass'n  vs.  See 
Loan  Ass^n  vs.  Topeka. 

Tory  Rent  Case.  See  Rutgers 
vs.    Waddington. 

Town  vs.  De  Haven.  U.  S. 
Cir.  Ct.  Oreiron,  1878;  5  Saw- 
yer, 146;  Fed.  Cas.  14,113, 
Sawyer,  J.,  Vol.  II,  83,  168 

Town  of  New  Haven,  Society 
for  the  Propagation  of  the 
Gospel  vs.  See  Society  &c. 
vs.    Town  of  New  Haven. 

Town  of  Titusville,  Brennan  vs. 
See  Brennan  vs.   Titusville. 

Toy  Long,  Chapman  vs.  See 
Chapman  vs.  Toy  Long. 

Trade  Mark  Cases.  U.  S.  Sup. 
Ct.  1879;  100  U.  S.  82,  Mill- 
er, J.,  Vol.  II,  244,  324,  326 

Traffic  Ans^n,  Joint,  United 
States  vs.  See  United  States 
vs.  Joint  Traffic  As.^''n. 

Treasurer  of  Louisiana  Poyd- 
ras  vs.  See  Poydras  vs. 
Treasurer  of  Loui.sinna. 

Truscott  vs.  Hurlburt  L.  &c. 
Co.     U.  S.  Cir.  Ct.  App.  9  th 


xc 


TABLE  OF  CASES. 


Page 
Cir.  1896;  44  U.  S.  App.  284, 
Ross,  J.,  Vol.  II,  36 

Trust  Co.,  Farmers''  Loan  <L, 
Pollock  vs.  Pollock  vs. 
Farmers^  L.  <fc  T.  Co. 

Trust  Funds,  The  Cherokee. 
See  Cherokee  Trust  Funds, 
The. 

Tung'  Yeongr,  In  re.  U.  S. 
Dist.  Ct.  Cahi.  1884;  9  Saw- 
yer, 620;  19  Fed.  Rep.  184, 
HOFFMAX.  J..  Vol.  II,  115 

Turner  vs.  Am.  Bap.  Miss. 
Union.  U.  8.  Cir.  Ct.  Michi- 
gan, 1852;  o  McLean,  344; 
Fed.  Cas.  14,251,  McLean,  J., 
Vol.  II,  63,  78 

Turner,  Smith  vs.  See  Smith 
vs.  Turner. 

Turpin  vs.  Burgess.  U.  S. 
Sup.  Ct.  1886;  117  U.  S. 
504,  Bradley,  J.,  Vol.  I,        549 

Two  Thousand  Cases  of  Rifies, 
United  States  vs.  See  Itata, 
The. 

Tyler,  People  {Michigan}  vs. 
See  People  vs.  Ti/ler. 

Ulman,  United  States  vs.  See 
United  States  vs.  Ulman. 

Union  Bank,  Mechanic'' s  Bank 
vs.  See  Mechanic's  Bank  vs. 
Union  Bank. 

Union  Pac.  By.  Co.,  United 
States  vs.  See  United  States 
Union  Pac  By.  Co. 

United  States.  Hee  also  Besjjub- 
lica. 

United  States,  Adams  vs.  See 
Brig  Williams,  The. 

United  States  vs.  Ah  Fawn. 
U.  S.  Dist.  Ct.  Cala.  1893;  57 
Fed.  Rep.  591,  Ross,  J.,  \  ol.  II,  118 

United  States  vs.  Alaska 
Packers'  Ass'n.  U.  S.  Cir. 
Ct.  Washinuton,  1897;  79 
Fed.  Rep.  152,  Handford, 
J.,  Vol.  II,  217 

United  States,  Albert]/  vs.  See 
Alherty  vs.  United  States. 

United  States  ex  rel.  Alexan- 
droff  vs.  Motherwell  (The 
Variagor  Russian  Deserter 
case).  U.  S.  Dist.  Ct.  Penna. 
1890:  103  Fed.  Rep.  198,  Mc- 
Pherson,  J.,  affirmed  on  ap- 
peal nub  nomine.  Mother- 
well et  al.  vs.  United  States 
ex  rel.  Alexandroff.  U.  S. 
Cir.  Ct.  App.  3d.  Cir.  1901; 
107  Fed.   Rep.  437,  Dallas 


Page 
and  Gray,  JJ.,  Bradford, 
J.,  dissenting.    Pending  and 
undecided  in  U.  S.  Sup.  Ct. 
Vol.  II,  256,  257 

United  States,  Ailing  vs.  See 
Ailing  vs.  United  States. 

United  States  vs.  The  Ambrose 
Light.  See  Ambrose  Light, 
The. 

United  States,  Armstrong  vs. 
See  Armstrong  vs.  United 
States. 

United  States,  Arnold  vs.  See 
Arnold  vs.  United  States. 

United  States  vs.  Arredondo. 
U.  S.  Sup.  Ct.  1832;  6  Peters, 
691,  Baldwin,  J.,  Vol.  I,  538,  553 

Vol.  II,  128,  146,  147]  165 

Uyi'ited  States,  Atocha  vs.  See 
Atochd  vs.  United  States. 

United  States  vs  Auguisola. 
U.  S.  Sup.  Ct.  1863;  1  Wal- 
lace, 352,  Field,  J.,  Vol.  II,  147 

United  States  Bank,  Osborne 
vs.  See  Osborne  vs.  Bank  of 
United  States. 

United  States  vs.  Berry.  U. 
S.  Cir.  Ct.  Colo.  1880;  2  Mc- 
Crarv,  58,  McCbary,  J., 
Vol.'ll,  231 

United  States  vs.  Black- 
feather.  U.  S.  Sup.  Ct. 
1894;  155  U.  S.  180,  Brown, 
J.,  Vol.  II,  235 

United  States,  Blagge  vs.  See 
Brig  Villiam,  The. 

United  States  vs.  Bojd.  U.  S. 
Cir.  Ct.  App.  4th  Cir.  1897; 
42  U.  S.  App.  637,  Goff,  J., 
Vol.  II,  222 

United  States,  Boyd  vs.  See 
Boyd  vs.  United  Sfafes. 

United  States  ex  rel.  Boynton 
vs.  Blaine.  U.  S.  Sup.  Ct.  1891; 
139  U.  S.  306,  Fuller,  Cli. 
J.  For  other  branches  of  this 
litigation  see:  See  La  Ahra 
Silver  Mining  Co.  vs.  Fre- 
linghuysen  ;  United  States 
vs.  LaAbra  Silver  Mining 
Co.  ;  and  United  States  vs. 
Alice  Weil.    Vol.  II.       309,  310 

United  States  vs.  Bridlenian. 
U.  S.  Dist.  Ct.  Oregon,  1881; 
7  Savever,  243,  Deady,  J., 
Vol.  II.  231 

United  States  vs.  Brooks. 
U.  S.  Sup.  Ct.  1850;  10  How- 
ard, 442,  Wayne,  J.,  Vol.  II,  218 


TABLE  OF   CASES. 


XCl 


Page 
United    States,    Broton  vs.  (Ct. 

of   Clms.)     See     Brown    vs. 
United  States. 
United  States,  Bryant  vs.     See 

Bryant  vs.  United  States. 
United   States,    Bush   vs.     See 

Bush  vs.  United  States. 
United    States,    Caha   vs.     See 

United  States  vs.  Caha. 
United  States   vs.   Caldwell. 

U.  S.  Dist.    Ct.    S.    D.  N.    Y. 

1871;     8     Blatohford,       131, 

Bknedict,  J.,  Vol.  II,      271,  273 
United  States,  Carlisle  vs.     See 

Carlisle  vs.  United  States. 
United  States  vs.  Carpenter. 

U.  S.  Sup.    Ct.    1884;  111  U. 

S.  347,  Field,  J.,  Vol.  II,        214 
United  States  vs.  Castillero. 

U.  S.  Sup.  CC,  1862;  2  Blaclc, 

1,  Clifford,  J.,  Vol.  I,  53S,  551 
554,  549 

Vol.  II,  165 

United  States,  Cessna  vs.     See 

Cessna  vs.  United  States. 
United     Statas,     Chae     Chang 

Ping    vs.     See    Chae   Chang 

Piw;!  vs.  United  States. 
United    States     vs.    Chaves. 

U.S.  Sup.  Ct.  1895;  159  IJ.  S. 

452,  Shiras,  J.,  Vol.  II,   181,  185 
United    States    vs.    Chavez. 

U.    S.  Sup.   Ct.  1899;   175  U. 

S.  509,  McKenna,  J.,  Vol.  II,   194 
United  States,  Cheung  Ah  Moy 

vs.     See   Cheong  Ah  Moy  vs. 

United  States. 
United  States,  Chew  Heong  vs. 

See  Chew  Heong  vs.  United 

States. 
United  States,  Chickasaw   Na- 
tion vs.     See  Chickasaw  Na- 
tion vs.  United  States. 
United   States,    China   Mutual 

Ins.    Co.    vs.      See     Caldera 

Cases. 
United     States,    Choctaw    and 

Chicasaw     Nations  vs.     See 

Choctaw   and  Chicasaw   Na- 
tions vs.  United  States. 
United  States,  Choctaw  Nation 

vs.     See  Choctaw  Nation  vs. 

United  States. 
United    States,    Chouteau    vs. 

See     Chouteau     vs.      United 

States. 
United  States  vs.  Clapox.    U. 

S.  D.  C.  N.  Y.   1888;  35  Fed. 

Rep.  675,  Deady.  J.,  Vol.  II,  231 
United  States  vs.  Clarke.    U. 


Page 

S.  Sup.  Ct.  1834;  8  Peters, 
436,  Marshall,  Ch.  J.,  Vol. 
II,  154,  181 

United  States,  Clawson  vs.    See 

(JlawSDu  vs.  United  States. 
United  States  vs.  Coe.    U.  S. 
Sup.  Ct.   1894;  155  LI.  S.  76, 
Fuller,  Ch.  J.,  Vol.  II,  181 

United  States  vs.  Coe.  U.  S. 
Sup.  Ct.  1898;  17U  U.  S.  681, 
McKenna,  J.,  Vol.  II,  181 

United  States,  Connor  vs.     See 

Conuiir  vs.  United  States, 
United  States  vs.  Cook.    U.  S. 
Sup.   Ct.    1873;   19    WallMce, 
591,  Waite,  Ch.  J.,  Vol.  II,    207 
United    States,    Cook   vs.     See 

Cook  vs.  United  States. 
United    States,     Crossman    vs. 
See     Crussinan    vs.     United 
States. 
United  States  vs.  Cruikshank. 
U.  S.  Sup.  Ct.  187.j;  92  U.  S. 
542,  Waite,  Ch.  J.,  Vol.  I,  34, 549 
United  States,  Gushing  vs.    See 

dishing  vs.  United  States. 
United     States,     Dainese     vs. 

See   Dainese^ s    Case. 
United  States  vs.  D'Auterive. 
U.  S.  Sup.  Ct.  1853;  15  How- 
ard, 14,  Nelson,  J.,  Vol.  II,  154 
United  States,    B'' Auterlve  vs. 
See    D^ Auterlve    vs.     United 
States. 
United  States  vs.  Davis.   U.  S. 
Cir.  Ct.   Mass.    1837;  2  Sum- 
ner, 482,  Story,  J.,  Vol.  II,    254 
United  StatfS,  Belassus  vs.  See 

Delassus  vs.  United  States. 
United  States,  Dennick  vs.    See 

Dennick  vs.  United  Statps. 
United  States  vs.  Dickson.  U. 
S.   Sup.   Ct.  1841;  15   Peters, 
141,  Story,  J.,  Vol.  I,  547 

United  States  vs.  Diekelman. 
U.  S.  Sup,  Ct.  1875;  92  U.  S. 
520,  Waite,  Ch.  J.,  reversing 
Diekelnian's  Case,  U.  S. 
Ct.  of  Claims,  1872;  8  Ct.  of 
Clms.  371,  LoRiNG,  J.  (See 
also  9  Ct.  of  Clms.  320),  Vol. 
II,  83,  298,  306 

United  States,  Dixon  vs.     See 

Dixon  vs.  United  States. 
United  States,  Dooley,  Smith  & 
Co.  vs.  See  Dooley,  Smith  & 
Co.  vs.  United  States. 
United  States  vs.  Douglas.  U. 
S.  Cir.  Ct.  Mass.  1883;  17 
Fed.  Kep.  634,  Nelson,  J., 


XCll 


TABLE  OF   CASES. 


Page 
Vol.  II,  115 

United  States,  Draper  vs.  See 
Draper  vs.  United  States. 

United  States,  Eastern  Band  of 
Cherokees  vs.  See  Eastern 
Band  of  Cherokees  vs.  United 
States. 

United  States  vs.  Eaton.  U. 
S.  Slip.  ft.  ks98;  IGll  U.  S. 
331,  White,  J.,  Vol.  II,  335 

United      States,    Elciii,    ^^ishi- 

■  7nura  vs.  See  Ekiu,  Nis/d- 
77inra  vs.  United  States. 

United  States,  Endleman  vs. 
See  Endleman  vs.  United 
States. 

United  States,  Ericin  vs.  See 
Ericin  vs.  United  States. 

United  States,  Fairbank  vs. 
See  Fairbank  vs.  United 
States. 

United  States,  Famous  Smith  vs. 
See  Famous  Smitfi  vs.  United 
States. 

United  States  vs.  rerreira. 
U.  S.  feup.  Ct.  1851;  13  How- 
ard, 40,  Takey,  Ch.  J.,  Vol. 
II,  298 

United  States  vs.  Fisher,  As- 
signee. U.  S.  Sui).  Cc.  Ib05; 
2  Ciauch,  358,  Maeshall, 
Ch.  J..  Vol.  I,  547 

United  States  vs.  Flint.  U. 
S.  L'ir.  Ct.  Cala.  1^76;  4  Saw- 
ver.  42;  Fed.  Cas.  15,121, 
FiKi.n,  J.,  Vol.  II.  144 

United  States  vs.  Flouruoy 
&c.  U.  S.  Cir.  Ct.  Nebraska, 
189G;  71  Fed.  Rep.  576, 
SniHAS,  J.     Same  as  Flonr-  ! 

noy  &c.  vs.  Beck  i  U.  S.  Land         j 
Ajrent)   and   Beck   vs.  Real         ! 
Estate  Co.     U.    S.  Cir.    Ct. 
App.  8tlt  Cir.   1894;  65  Fed. 
Re]).  .30,  Thayer,  J.,  Vol.  II,  216 

United  States,  Fonu  Yne  Tiny 
vs.  See  Fong  Yue  Tiny  vs. 
United  States. 

United  States  vs.  Forty-three 
(iallons  of  Whiskey.  U.  S. 
Sup.  Ct.  1876;  93  U.  S.  188, 
Davi!^.  J.,  and  1883;  108  U.  S. 
491,  Field,  J.,  Vol.  I,  540,  553 
557,  559,  560,  561,  562 
Vol.  II,  144,  212 

United  States  vs.  Foster.  U. 
S.  Cir.  Ct.  WisconsiQ,  1870; 
2     Bissell,    :,77;     Fed.     Cas. 

15,141,  DBUMilOND,    J.,    Vol. 

n,  216 


Page 

United  States  vs.  Fourteen 
Diamond  liinys.  See  Four- 
teen Diamond  Bings. 

United  States  Freehold  itc.  Co., 
Tameling  vs.  See  Tumeling 
vs.  United  States  &c.  Co. 

United  States,  Fremont  vs.  See 
Fremont  vs.  United  States. 

United  States,  Fi-iend  vs.  See 
Friend  vs.  United  States. 

United  States,  Garrison  vs.  See 
Garrison  vs.  United  States. 

United  States,  Gee  Fook  Sing 
vs.  See  Gee  Fook  Sing  vs. 
United  States. 

United  States,  Gibbons  vs.  See 
Gibbons  vs.  Unitf  d  Slates. 

United  States  vs.  Gilliat.  U. 
S.  Sup.  Ct.  1890;  164  U.  S.  42, 
Peckham,  J.,  Vol.  II,      284,  299 

United  States,  Godson  vs.  See 
Godson  vs.  United  States. 

United  States,  Goetze  vs.  See 
Goetze  vs.  United  States. 

United  States  vs.  Gratiot.    U. 
S.   Sup.  Ct.   1840;  14  Peters, 
526,  Thompson,  J.,  Vol.  I,       538 
540,  553,  555,  559 

United  States.  Gray  vs.  See 
Gray  vs.  United  State.s, 

United  States,  Great  Western 
Ins.  Co.  vs.  See  Great  West- 
ern Ins.  Co.  vs.  Unitf  d  States. 

United  States  vs.  Gue  Lim 
(Mrs.).  U.  S.  Sup.  Ct.  1900; 
176  U.  S.  459,  Peckham  J., 
Vol.  II,  86,  113 

United  States,  Raskins  vs.  See 
Brig   William,  The.  ' 

United  States  vs.  Hathaway. 
U.  S.  Sup.  Ct.  1866;  4  Wal- 
lace, 404,  Nelson,  J.,  Vol.  II,     71 

United  States  vs.  Hayvrard. 
U.  S.  Cir.  Ct.  Mass.  1815;  2 
Gallison,  485,  Stoby,  J., 
Vol.  I,  549 

United  States,  Higueras  vs. 
See  Higueras  vs.  United 
States. 

United  States  vs.  Hill.  U.  S. 
Cir.  Ct.  Virgiuia  1809;  1 
Brockeubrougb,  156,  Mar- 
shall, Cli.  J.,  Vol.  I,      545,  550 

United  States,  Hill  vs.  See 
Hill  vs.  United  States. 

United  States,  Holbrook  vs. 
See  Holbrook  vs.  United 
States. 

United  States  vs.  Holliday. 
U.  S.  Sup.  Ct.   1865;  3  Wal- 


TABLE   OF   CASES. 


xcm 


Page 

lace,  407,  Miller,  J.,  Vol.  I, 

537,  544 

Vol.  II,  362 

United  States,  Hooper  vs.     See 

Hooper  vs.  Uniled  States. 
United  Slates,  Horner  vs.     See 

Horner  vs.  United  States. 
United  States  vs.  Vowell.     See 

U)dted  States  vs.  Howell. 
United   States  ex  rel.  Lyon 

&c.  vs.  Hiickabee.   U.  S.  bap. 

Ct.    1872;    1(5   Wallace,    414, 

Clifford,  J.,  Vol.  I,       545,  551 
United  States,  Hubbell  vs.     See 

Caldera  Cases. 
United    States    vs.    Hunter. 

U.  S.  Cir.  Ct.  Missouri,  1884; 

21  Fed.   Rep.  615,  Brewer, 

J.,  Vol.  II,  214 

United  States,  Hylton  vs.     See 

Ht/lton  vs.  United  States. 
United  States  vs.  Isham.    U. 

S.  Sup.  Ct.  1873;  17  Wallace, 

496,  Hunt,  J.,  Vol.  I,  457 

United    States   vs.    The   Itata. 

See  Itata,  The. 
United    States,    Janis  vs.     See 

Janis  vs.  United  States. 
United  States  vs.  Johnston. 

U.  S.  Sup.  Ct.   1888;  124  U. 

S.  236,  Harlan,  J.,  Vol.  I,  470 

544 

Vol.  TI,  362 

United  States  vs.  Joint  Traf- 
fic Ass'n.     U.    S.   Sup.   Ct. 

1898;    171  U.  S.  505,  Peck- 
ham,  J.,  Vol.  I,         541,  543,  547 
United    States,  Jones   vs.     See 

Jont's  vs.  United  States. 
United  States  vs.  Joseph.    U. 

S.   Sup.    Ct.    187G;    94   U.    S. 

614,  Miller,  J.,  Vol.  II,  2.32 

United  States,  JoSfj>hs  vs.     See 

Josephs  vs.  United  States. 
United  States,  Journeycake  vs. 

See   Journeycake    vs.  United 

States. 
United    States   vs.   Jimsf   Ah 

Lung.      U.  S.  Sup.  Ct.  1888; 

124  U.  S.  621,   Blatchford, 

J.,  Vol.  II,  94,  95,  98,   121 

United  States  vs.  Kai?ama.  U. 

S.  Sup.  Ct.    1886;    118  U.   S. 

;i75;  Miller,  J.,  Vol.  I,  540 

557,  559,  562 

Vol.  II,  198,  226,  231,  2.32 

rnited  States,  Kendall  vs.     See 

Kendall  vs.  United  States. 
United    States    vs.    King    & 

Coxe.     U.  S.  Sup.  ct.   1845; 


Page 
3  Howard,  773;  and  1849;  7 
Howard,  833,  Taney,  Cli.  J., 
Vol.  II,  154,  165 

United  States,  Kinkead  vs.  See 
Kinkead  vs.  United  States. 

United  States  vs.  Knight.  U. 
S.  Sup.  ct.  1861 ;  1  Black,  227, 
Clifford,  J., Vol.  II,  184 

United  States,  La  Abra  S.  M. 
Co.  vs.  See  La  Abra  &c.  vs. 
United  States. 

United  States,  Labadi  vs.  See 
Labadi  vs.  United  States. 

United  States  vs.  La  Chapelle. 
U.  S.  Cir.  Ct.  Washington, 
1897;  81  Fed.  Kep.  152,  Hand- 
FOKD,  J.,  Vol.  II,  212 

United  States  Land  Ass''n, 
Knight  vs.  See  Knight  vs. 
Land  Ass'n. 

United  States  v.  Layerty.  U. 
y.  Dist.  ct.  La.  1815;  3  Mar- 
tin ( O.  S. )  733,  Vol.  II,  169 

United  States,  Lau  Ow  Bew  vs. 
See  Lau  Ow  Bew  vs.  United 
Statps. 

United  States  vs.  Lawrence. 
U.  S.  Cir.  Ct.  S.  D.  N.  Y. 
1876;  13  Blatchford,  295,  Fed. 
Cas.  15,573,  Benedict,  J., 
Vol.  II,  271.  272,  273 

United  States  vs.  Leathers. 
U.S.  Sup.  Ct.  1882;  106  U.  S. 
196,  Miller,  J.,  Vol.  II,         231 

United  States,  Leavenworth 
&c.  R.  B.  Co.  vs.  See  Leav- 
enworth &C.B.  B.  Co.  vs.  Uni- 
ted States. 

United  States  vs.  Le  Bris.  U. 
S.  Sup.  Ct.  1887;  121  U.  S. 
278,  Waite,  Ch.   J.,  Vol.  II,  214 

United  States  vs.  Lee.  U.  S. 
Sup.  Ct.  1882;  106  U.  S.  196, 
Miller,  J.,  Vol.  II,  299 

United  States,  Leighton  vs.  See 
Leighton  vs.  United  States. 

United  States,  Lem  Hing  Dun 
vs.  See  Lem  Hing  Dun  vs. 
United  States. 

United  States,  Lem  Moon  Sing 
vs.  See  Lem  Moon  Sing  vs. 
United  States. 

United  States,  Leio  Jim  vs.  See 
Lew  Jim  vs.  United  States. 

United  States,  Litchfield  vs.  See 
Litchfield  vs.  United  States. 

United  States,  Love  vs.  See 
Love  vs.  United  States. 

United  States,  Lucas  vs.  See 
Lucas  vs.  United  States. 


XCIV 


TABLE  OF   CASES. 


Page 

United  States  vs.  Lyude.    U. 

y.  feup.  Ut.  I8T0;  11  Wallace, 
632,  Bkadley,  J.,  Vol.    II, 

144,  146 
United   Stafea,   McAllister  vs. 
See   McAllinter    vs.     United 

Sidles. 

Uuited  States  vs.  McBratney. 

U.    S.   Sup.    Ct.    16M;   104  U. 

S.  621,  GitAY,  J.,  Vol.  II,  86,  230 

United  States,  Malionerj  vs.  See 
Ma/ionei/  vs.  United  States. 

United  St(ite!<.  31  ares  vs.  See 
Hares  vs.  Uniled  States. 

United  States  Marshal  Cases. 
See  In  re  I*' eagle,  California 
Case  and  Necly  vs.  Henkel  ( U. 
S.  Mar.fhal,  N.  Y.) 

United  Slates  vs.  Martin.  U. 
S.  Dist.  Ct.  Oregon,  1883; 
14  Fed.  Rep.  817,Deady,  J., 
Vol.  II.  230 

United  States  vs.  Maurice.  U. 
S.  tir.  Ct.  Viigiui:!,  1823;  2 
Brockenbrough,  96,  Mar- 
SHAi.i,,  J.,  Vol.  I,  336 

United  States,  Meade  vs.  See 
Meade  vs.  United  States. 

United  States,  Meredilh\s.  See 
Meredith  vs.  United  States. 

United  States,  Mesa  vs.  See 
Mesa  vs.  U)iited  Slates. 

United  States,  Miller  vs.  See 
Miller  vs.  Uxited  States. 

United  States,  Missouri,  K.  & 
T.  R.  B.  Co.  vs.  See  Mis- 
souri, K.  &  T.  B.  B.  Co.  vs. 
Uniled   States. 

United  States,  Mitchel  vs.  See 
Mitchel  vs.  United  States. 

United  Stales,  Mononuahela 
Nav.  Co.  vs.  See  Momnvia- 
hela  Nav.  Co.  vs.  Uniled 
States. 

United  States  vs.  Moore.  U. 
S.  Sup.  Ct.  1851;  12  How- 
ard, 209,  Catkox,  J.,  Vol.  II,  194 

Uniled  States,  Moore  vs.  See 
Moore  vs.  United  States. 

United  States  vs.  Morant.  U. 
S.  .-iup.  Ct.  1887;  12:!  U.  S. 
.S3.-.,  Br  ABLE  Y,  J.,  Vol.  II,       194 

United  States  vs.  Moreno. 
U.  S.  Sup.  Ct.  1863;  1  Wal- 
lace, 400,  SWAYNE,  J.,  Vol. 
II,  147,  184 

United  States,  Mormon  Church 
vs.  See  Mormon  Church  vs. 
United  Slah  s. 

United    States    vs.    Morris. 


Page 
U.  S.  Cir.  Ct.  Mass.  1850,  1 
Curtis,  24,  Curtis,  J.  Vol.  I,  656 
United  States  vs.  Morris.    U. 

S.  Cir.  Ct.  Dist.  Col.  1895; 
23  Wash.  Law.  Rep.  745, 
Hagner,  J.;  Vol.  II,  194 

United  States,  Morris  vs.  See 
Morris  vs.  United  States. 

United  States,  Morton  vs.  See 
United  States  vs.  Sandoval. 

United  States  vs.  The  Nancy. 
U.  S.  Cir.  Ct.  Peiiua.  1814;  3 
Washington  C.  C.  R.,  Wash- 
ington. J.,  Vol.  I,  538,  540 

United  States  vs.  Nash  (alias 
Robins).  U.  S.  Dist.  Ct.  So. 
Car.  179'J;  Bee's  Admr.,  266; 
Fed.  Cas.  16,175,  Bee,  J., 
Vol.  II,  80,  105,  2.57,  258 

United  States  vs.  Navarre. 
U.  S.  Sup.  Ct.  1899;  173 U.  S. 
77,  McKenna.  J.  (nffirming 
Navarre  vs.  United  States, 
U.  S.  Court  of  Claims,  1898, 
3*Ct.  of  Clms.  235),  Vol.  II,  223 

United  Stales,  Navarre  vs.  See 
Navarre  vs.  United  States. 

Uuited  States  v.  Nelson.  U. 
S.  Dist.  Ct.  Alaska,  1887;  29 
Fed.  Rep.  202,  Dawson,  J., 
affirmed,  sub  nomine  Nelson 
vs.  United  States;  U.  S. 
Cir.  Ct.  1887;  30  Fed.  Rep. 
112,  Deady,  J.,  Vol.  I,  553 

United  States,  Nelson  vs.  See 
Nelson  vs.  United  States. 

United  States,  New  Orleansys. 
See  Nell)  Orleans  vs.  United 
Stales. 

United  States  vs.  New  York 
Indians.  U.  S.  Su]!.  Ct. 
1899;  173  U.  S.  464,  Broavn, 
J.,  Vol.  II,  235 

United  States,  Neio  York  In- 
dians vs.  See  New  York  In- 
dians vs.  United  Stales. 

United  States,  Nislnmiira 
Ekiu  vs.  See  Ekiu  &c.  vs. 
United  Stales. 

United  States,  Nofire  vs.  See 
Nofire  vs.  United  Stat.'s. 

United    States    vs.    O'Keefe. 
U.  S.  Sup.   Ct.  1870;  11  Wal- 
lace, 178,  Davis,  J.,  Vol.  I,     550 
Vol.  II,  203,  295,  299 

United  States  vs.  Old  Set- 
tlers. U.  S.  Sup.  (  t.  18i)3; 
148  U.  S,  427,  Fuller,  Ch. 
J.,  Vol.  II,  235 

United    States  vs.    Osborne. 


TABLE   OF   CASES. 


XCV 


Page 
U.  S.  Dist.  Ct.  Oregon,  1880; 
6  Sawyer,   406,    Deady,  J., 
Vol.  I,  643,  557,  562 

Vol.  II,  174 

Uuited  States  vs.  Palmer. 
U.  S.  Sup.  Ct.  1818;  3 
Wheaton,  610,  Mahsuali., 
Ch.  J.,  Vol.  I,  537,  544 

Vol.  II,  362 

United  States,  Pam-to-pee  vs. 
See  Pam-to-pee  vs.  United 
States. 

United  States  vs.  Patten. 
U.    S.  Cir.  Ct.   Maine,    1874; 

1  Holmes,  421,  Shepley,  J., 
Vol.  I,  549 

United   States,    Paulinson  vs. 

See  C  alder  a  Cases. 
United     States     vs.    Payne. 

U.  S.  Cir.  Ct.  Arkansas,  1881; 

2  McCrary,  289,  Pabkek,  J., 
Vol.  II,  232 

United  States,  Peabody  vs. 
See  Peabody  vs.  United 
States. 

United  States  vs.  Pena.  U.  S. 
Sup.  Ct.  1899;  175  U.  S.  500, 
Bkewer,  J.,  Vol.  II,  194 

United  States  vs.  Percheman. 
U.  S.  Sup.  Ct.  1833;  7  Peters, 
51,  Marshall,  Ch.  J., 
Vol.  I,  538,  553,  555,  559 

Vol.  II,  147, 153,  162.  Iti6,  178,  186 

United  States  vs.  Pillerin. 
U.  S.  Sup.  Ct.  1851;  13  How- 
ard, 9, Taney,  Ch.  J.,  Vol.  II,  194 

United  States,  Potawatamie 
Indians  vs.  See  Pam-to-pee 
vs.  United  States. 

United  States  vs.  Pridg-eon. 
U.  S.  Sup.  Ct.  1894;  153  U.S. 
48,  Jackson,  J.,  Vol.  II,  231 

United  States  vs.  Quiinby. 
U.  S.  Sup.  Ct.  186G;  4  Wal- 
lace, 408,  Nelson,  J., 
Vol.  II,  71 

United  States,  Quock  Ting  vs. 
See  Quock  Ting  vs.  United 
States. 

United  States  vs.  Qiiong  Woo 
(Chinese  Laundry  cases). 
U.  S.  Cir.  Ct.  Cala.  1882;  also 
sub  nomine,  lu  re  Quong 
Woo.  13  Fed.  Rep.  2:i'J  and 
7  Savryer,  526,  Field,  J., 
Vol.  TI,  28,  51 

United  States  vs.  Rauscher. 
U.  S.  Sup.  ct.  1886;  119  U.  S. 
407,  Miller,  J.,  Vol.  I,  544,  552 
553,  556,  559,  560 


Page 

Vol.  II,  84, 123, 145,  268,  272,  273 

274,  275,  277,  361 

United  States,  Ravesies  vs. 
Bavesies  vs.  United  States. 

United  States  vs.  Realty  Co. 
U.  S.  Sup.  Ct.  1896;  163  U. 
S.  427,  Peckham,  ,J.,  Vol.  II,  299 

United  States  vs.  Repentigny. 
U.  S.  Sup.  Ct.  1866;  5  Wal- 
lace, 211,  Nelson,  J.,  Vol.  I,  5.38 
551,  553,  555,  558,  559 
Vol.  II,        147,  166,  167,  176,  188 

United  States  vs.  Reynes.    U. 
S.  Sup.  Ct.  1850;  9   Howard, 
127,  Daniel,  J.,  Vol.  I,  .538,  544 
553,  555,  559,  561 
Vol.  II,  128,  140,  166,  362 

United  States,  Reynolds  vs. 
See  Reynolds  vs.  United 
States. 

United  States  vs.  Rhodes.  U. 
S.  Cir.  Ct.  Kentucky,  1866; 
1  Abb.  U.  S.  Kep.  28, 
Sv(rAYNE,  J.,  Vol.  I,  558 

United  States  vs.  Rice  (The 
Castine  Case).    U.  S.  Sup. 
Ct.    1819;    4   Wheaton,    246, 
Story,  J.,  Vol.  I,     138,  171,  172 
190,  470,  474,  547,  551,  555 

United  States,  Rio  Arriba  Land 
&c.  Co.  vs.  See  Rio  Arriba 
&c.  Co.  vs.  United  States. 

Uuited  States  vs.  Rio  Grande 
Dam  &  Irrig-atiou  Co.  U. 
S.  Sup.  Ct.  1898;  174  IT.  S. 
690,  Bbewer,  J.,  Vol.  II,        144 

United  States  vs.  Ritchie. 
U.  S.  Sup.  Ct.  1854;  17  How- 
ard, 525,  Nelson,  J.,  Vol.  II, 

169,  232 

United  States,  Roberts  vs.  See 
Roberts  vs.  United  States. 

United  States  vs.  Rodders. 
U.  S.  Dist.  Ct.  Arkansas, 
1885;  23  Fed.  Rep.  658, 
Parker,  J.,  Vol.  II,  230 

United  States  vs.  Rodders. 
U.  S.  Sup.  Ct.  1893;  150  U. 
S.  249,  Field,  J.,        Vol.  II,  317 

United  States  vs.  Rog'ers. 
U.  S.  Sup.  Ct.  1846;  4  How- 
ard, 567,  Taney,  Ch.  J., 
Vol.  I,  558,  559,  562 

Vol.  II,  173.  215,  226,  231 

United  States  vs.  Rose.  U. 
S.  Sup.  Ct.  1859;  23  Howard, 
262,  Campbell,  J.,  Vol.  II,    184 

United  States  vs.  Roselius. 
U.  S.  Sup.  Ct.  1853;  15  How- 
ard, 31,  Cateon,  J.,  and  15 


XCVl 


TABLE   OF   CASES. 


Page 
Howard,   36  Taney,  Cb.  J., 
Vol.  11,  184 

United   Statei^,    Boss    vs.     See 

UonK  vs.  United  States. 
United  States  vs.  Sandoval 
(also  Morton  vs.  United 
States).  U.S.  Sup.  Ct.  1897; 
1(37  U.  S.  278,  Fuller,  Ch.  J., 
Vol.  II,  181 

United  States  vs.  Santa  F^. 
U.  S.  Sup.  Ct.  1897;  105  U.  S. 
67.-),  Whitk,  J.,  Vol.  II,  181 

United  States  vs.  Schooner 
Pi'???y.  U.  S.  Sup.  ct.  1801; 
1  C'r.iiich,  103,  Marshall, 
Ch.  J.,  Vol.  I,  470 

Vol.  II,  83,  146,  148,  361,  402 

United    States,     Sherman    vs. 
See     Sherman     vs.      United 
States. 
United    States   vs.    Sibhald. 
U.  S.  Sup.  Ct.  1836;  10  Peters, 
313,  Baldwin,  J.,  Vol.  II,       194 
United  States,  Smith  vs.     Same 
as  Soulard  vs.  United  States. 
United  States,  Smith  {Faiuous) 
vs.     See   Fai7ious    Smith   vs. 
United  Statea. 
United    States.   Snoio   vs.     See 

Snow  vs.  United  States. 
United  States,  Soulardvs.     See 

Soulard  vs.  Uiiited  States. 
United  States,  Stearns  vs.    See 

Stearns  vs.  United  States. 
United  States  vs.  Sturgeon. 
U.  S.  Dist.  Ct.  Nevada,  1879; 
6  Sawver,   29,  Hillyee,  J., 
Vol.  li,  231 

United  States,  Sun  Mutual  Ins. 

Co.  vs.     See  Caldera  Cases. 
United  States  vs.  Sunol.    U. 
S.  Dist.  Ct.  Cnla.   18.5.5;  Fed. 
Cas.    16,421,    Hoffman,    J., 
Vol.  II,  232 

United  States  vs.  Tlie  James 
G.  Swan.  U.  S.  Uist.  Ct. 
Washington,  1892;  50  Fed. 
Pep.  108,  Hakdford,  J., 
Vol.  I.  557 

United  States,  Taber  vs.     See 

Taber  vs.  United  States. 
United    States    vs.    Taylor. 
Sup.    Ct.    Washington    Ter. 
1887:  3  Wash.  Ter.  Rep.  88, 
Hoyt,  J.,  Vol.  II.  218 

United  States  vs.  Texas.  U. 
S.  Sup.  Ct.  1892;  143  U.  S. 
621;  and  1896.  162  U.  S.  1, 
Harlan.  J.,  Vol.  I,  560 

United  States,  Thingvalla  Line 


Page 

vs.  See  Thingvalla  Line  vs. 
United  States. 

United  States  vs.  Tliomas. 
U.  S.  Sup.  Ct.  1894;  151  U. 
S.  577,  FiKLD,  J.,  Vol.  II,        230 

United  States,  'lltomas  vs.  See 
Thomas  vs.  United  States. 

United  States  v.  Tobacco 
Factory.  U.  S.  Cir.  Ct.  Ar- 
kansas, 1871;  1  Dillon,  264, 
Caldwell,  J.,  Vol.  I,     560,  562 

United  States  vs.  2000  Cases  of 
Rifles.     See  Rata,  The. 

United  States  vs.  Ullman.  U. 
S.  Dist.  Ct.  E.  D.  N.  Y.  1871; 
4  Benedict,  547,  Blatch- 
FORD,  J.,  Vol.  I,  547 

United  States  vs.  Union  Pac. 
R.  R.  Co.  U.  S.  Sup.  Ct. 
1875;  9i  U.  S.  72,  Davis,  J., 
Vol.  II,  4,  547 

United  States,  Volk  vs.  See 
Volk  vs.  United  States. 

United  States  vs.  Vowell.  U. 
S.  Sup.  Ct.  1810;  5  Cranch, 
.368,  Marshall,  Ch.  J.,  Vol. 
I,  571 

United  States,  Wan  Shing  vs. 
Wan  Shing  vs.  Ignited  States. 

United  States  vs.  Watts.  U. 
S.  Dist.  Cr.  Cala.  1882;  8 
Sawyer,  370,  Hoffman,  J., 
Vol.  II,  271,  273 

United  States  vs.  Warr.  U. 
S.  Dist.  Ct.  S.  D.  N.  y.  1845; 
Fed.  Cas.  16,644,  Morton, 
Comm'r,  Vol.  II,  267 

United  States  vs.  W'eed.  U. 
S.  Sup.  Ct.  1866; •  5  Wallace, 
62,  Miller,  J.,  Vol.  I.  548 

United  States  vs.  Weld.    U. 
S.  Sup.  Ct.  1888;  127  U.  S.  51, 
Lamar,  J.,  Vol.  II,  289,  292.  299 
301,  361 

United  States,  Westmoreland 
vs.  See  Westmoreland  vs. 
United  States. 

United  States,  Western  Chero- 
kee Indians  \s.  See  Western 
Cherokee  Indians  vs.  United 
States. 

United  States  vs.  Wiggles- 
worth.  U.  S.  Cir.  Ct.  Mass. 
1842;  2  Story,  369,  Story.  J., 
Vol.  I,  548 

United  States  vs.  Wilson.  U. 
S.  Sup.  Ct.  1861;  1  Black, 
267,  Nelson,  J.,  Vol.  II.  221,  232 

United  States  ex  rel.  White, 
Bayard  vs.     See  Bayard  vs. 


TABLE   OF   CASES. 


XCVU 


Page 
United  States  ex  rel.  White. 

United  States,  Whitelaw  vs. 
See  Whitelaw  vs.  United 
States. 

United  States,  Wilber  vs.  See 
Caldera  Cases. 

United  States,  Williams  vs. 
See  Williams  vs.  United 
States. 

UiiitedSlatesvs.  Winans.  U. 
S.  Cir.  Ct.  Washin-itoii,  189G; 
73  Fed.  liep.  72,  Handfobd, 
J.,  Vol.  II,  218 

United  States  vs.  Wong-  Kim 
Ark.  (Chinese  Citiz.Miship 
case.)  U.  S.  Sup.  Cc.  1898; 
169  U.  S.  649,  Gray,  J.  Vol. 
I  552   558 

Vol.  II,         109-113,  116,  541,'  543 

United  States,  Wong  Wing  vs. 
See  Wong  Wing  vs.  United 
States. 

United  States  vs.  Yellow  Sun. 
U.  S.  Cir.  Ct.  Nebraska,  1870, 
1  Dillon,  271,  Dillon,  J., 
Vol.  II,  231 

United  States  vs.  Yong-  Yew. 
U.  S.  Dist,  Ct.  Missouri,  1897; 
83  Fed.  Rep,  832,  Adams,  J., 
Vol.  II,  118,  259 

United  States  vs.  Yorba.     U. 
S.  Sup.  Ct.  1863;  1  Wallace, 
412;  Field,  J.,  Vol.  I,     537,  544 
Vol.  II,  146,  362 

Uriarte,  De,  Castro  vs.  See 
Castro  vs.  De  Uriarte, 

Utali  Jury  Case.  See  Ameri- 
can Pub.  Co.  vs.  Fisher. 

Utali  M.  &  Mfg.  Co.  vs.  Dick, 
ert  &  M.  Sulphur  Co.  Sup. 
Ct.  Utah,  1889;  6  Utah,  183, 
JUDD,  J.     Vol.  II,  78 

Utah  &  Northern  Ry.  Co.  vs. 
Fisher.  U.  S.  Sup.  Ct.  1885; 
116  U.  S.  28,  Field,  J.,  Vol. 
II,  225 

Utah,  Thompson  vs.  See 
Thompson  vs.  Utah. 

Valandighani,  Ex  parte.  U. 
S.  Cir.  Ct.  Ohio,  1863;  Fed. 
Cas.  16,816  ( pamphlet,  Riekey 
&  Carroll,  Cincinnati),  Leav- 
ITT,  J.,  Vol.  I,  551,  556 

Talk  vs.  United  States.  U.  S. 
Ct.  of  Claims,  1894;  29  Ct.  of 
Clms.  C2,  Richardson,  Ch, 
J.,  Vol.  II,  223 

Van  Aernam,  Ex  parte.  U.  S. 
Cir.  Ct.  S.  D.  N.  Y.   1854;  3 

G 


Page 
Blatchf.  160;  Fed.  Cas.  16,824, 
Betts,  .J.,  Vol.  II,  267 

Yau  Brocklin  vs.  State  of 
Tennessee.  U.  S.  Sup.  Ct. 
18813;  117  U.  S.  151,  GRAY,  J., 
Vol.  I,  336 

Yance  vs.  Yandercook  Co.  U. 
S.  Sup.  Ct.  1898;  170  U.  S. 
438,  White,  J.,  Vol.  I,     543,  547 

Vanderbiit  Yacht  Case.  See 
Conqueror,  The. 

Va7idercook  Co.,  Vance  \s.  See 
Vance  vs.  Vandercook. 

Vanderpool,  State  {Ohio)  vs. 
See  State  vs.  Vanderpool, 

Yaiidervelpen,  In  re.  U.  S. 
Cir.  Cc.  S.  D.  N.  Y.  1877;  14 
Blatchford,  137;  Fed.  Cas. 
16,844,  Johnson,  J.,  Vol.  II,  261 

Yan  Hoven,  Ex  parte.  U.  S. 
Cir.  Ct.  Miuu.  1876;  4  Dillon, 
412;  Fed.  Cas.  16,858,  Nelson, 
J.;  and  4  Dillon,  415,  Dil- 
lon, J.,  Vol.  II,  267 

Yaret  vs.  New  York  Ins.  Co. 
N.  Y.  Ct.  of  Chan.  1839;  7 
Pai^e  Ch.  560,  Walworth, 
Chan.,  Vol.  II,  298 

Variag  Case.  See  United 
States  &c.  vs.  Motherwell. 

Vasse,  Comeciys  vs.  See  Com- 
egi/s  vs.  Vosse. 

Yeasie  vs.  Moor.  U.  S.  Sup. 
Ct,  1852;  14  Howard,  568, 
Daniel,  J.,  Vol.  I,  549 

Venus,  The  Brig.  See  Brig 
Venus,  The. 

Yeremaitre,  In  re.  U.  S.  Dist. 
Ct.  S.  D.  N.  Y.  1850;  Fed. 
Cas.  16,915,  JuDSON,  J.,  Vol. 
II,  267 

Vermont  vs.  Society  for  the 
Propagation  of  the  Gospel. 
See  State  of  Vermont  vs.  So- 
ciety <fcc. 

Vermont  Extradition  Case.  See 
Holmes  vs.  Jennison. 

Vermont,  CNeill  vs.  See 
CNeill  vs.  Vermont. 

Vermont,  State  of,  vs.  Brewster. 
See  State  of  Vermont  vs. 
Brewster. 

Vessels,  Names  of.  See  Adven- 
ture and  Cargo,  The.  Am- 
brose Light,  The.  Ami((ble 
Isabella,  The.  Amy  War- 
wick, The.  Antelope,  The. 
Barque  Havana,  The.  Bech- 
erdass  Ambaidass,  The.     Bel- 


XCVlll 


TABLE  OF  CASES. 


Page 


genlnnd.  The.  Bello  Cor- 
runes,  The.  Brig  Venus,  The. 
Briij  William,  The.  Burch- 
ard.  The.  Catherina,  The. 
Charkieh,  The.  City  of  Pan- 
ama, The.  Conqueror,  The. 
Eliza  and  Cargo,  The.  El- 
wine  Kreplin,  The.  Ex- 
change (Schooner)  vs.  Mc- 
Fadden.  Fanm,  The.  Feol, 
The  vs.  Salomoni.  Forsokel, 
The.  Genessee  Chief,  Tlu . 
Golubchick,  The.  Grapeshot, 
The.  Ilarrisburg,  The.  It- 
ata,  The.  La  Ninfa,  The. 
Lark  and  Cargo,  The.  Leavit 
vs.  lite  Shakespeare.  Le 
Louis,  The.  LeonXlIL,  The. 
Lola,  The  (Paquette Hubana). 
Marie,  The.  Nereide,  The. 
Nina,  The.  Paquette  Ha- 
bana.  The.  Parlement  Beige, 
The.  Poweshiek,  The.  Pilot, 
The.  Pizarro,  The.  Prize 
Cases,  The  {Civil  War).  St. 
Oloff,  The.  Sally  and  Cargo, 
The.  Santissinia-  Trinidad, 
The.  Scotia,  The.  Ship 
Apollo,  The.  Ship  Betsey, 
The.  Ship  Concord,  The. 
Ship  Ganges,  The.  Ship  Jane, 
The.  Ship  Juliana,  The. 
Ship  Parkman,  The.  Ship 
Bichmond,  The.  Ship  Star, 
The.  Ship  Torn,  The.  Swan, 
The.  United  States  vs.  The 
Nancy.  United  States  vs. 
Schooner  Peggy.  United 
States  vs.  The  James  G.  Swaii. 
Williams  vs.  The  W^elhaven. 

Yidal,  In  re.  U.  S.  Sup.  Ct. 
1900;  179  U.  S.  126,  Fuller, 
Ch.  J.,  Vol.  II, 

Virginia,  Cohens  vs.  See  Co- 
hens vs.  Virginia. 

Virginia,  McCready  vs.  See 
McCready  vs.  Virginia. 

Vogt  Extradition  Case,  The. 
See  People  ex  rel.  Barlow  vs. 
Curtis. 

Vowell,  United  States  vs.  See 
United  States  vs.  Vowell. 

Waddell,  Martin  vs.  See  Mar- 
tin vs.  Waddell. 

Waddington,  Eutgers  vs.  See 
Rutqersxfi.  Waddington. 

Wadge,  In  re.  U.  S.  Dist. 
Ct.  S.  D.  1883;  1.5  Fed.  Rep. 
864.  Browx,  J.,  Vol.  II, 

Wahl,  In  re.    U.  S.  Ct.  Cir. 


170 


267 


Page 

S.  D.  N.  Y.  1878;  15  Blatch- 
ford,  334;  Fed.  Cas.  17,041, 
Blatchford.  J.,  Vol.  II,        267 

Wagoner  vs.  Evans.  U.  S. 
Sup.  Ct.  1898;  170  U.  S.  588, 
Shiras,  J.,  Vol.  II,  214 

Walker  vs.  Baird.  Privy 
Council,  1892;  Appeal  Cases, 
491;  61  L.  J.  P.  C.  92;  67  L. 
T.  513,  Herschell,  L.  J., 
Vol.  I,  208 

Walker  vs.  Sauvinet.  U.  S. 
Sup.  Ct.  1875;  92  U.  S.  90, 
Waite,  Ch.  J.,  Vol.  I,      543,  546 

Walker,  Jones  vs.  See  Jones 
vs.  W^alker. 

Wall,  Wilson  vs.  See  Wilson 
vs.  Wall. 

Wang  Qaan  vs.  United  States. 
Argued  and  decided  with 
Fo7ig  Yue  Ting  vs.  United 
States. 

Wan  Sliing  vs.  United  States. 

U.  S.  Sup.  Ct.  1891;   140  U.  S. 
424,  Field,  J.,  Vol.  II,        98,  99 
100,  102,  103 

War  Revenue  Case.  See  Fair- 
bank  vs.  United  States. 

War  Revenue  Inheritance  Tax 
Case  (1900).  See  Knowlton 
vs.  Moore. 

Ward  vs.  Race  Horse.  See 
U.S.  Sup.  Ct.  ]896;  163  U.  S. 
504,  White,  J. ;  reversing,  In 
re  Race  Horse,  U.  S.  Cir. 
Ct.  Wyoming,  1894;  70  Fed. 
Rep.  598,  RiNER,  J.,  Vol.  II,  33 
34,  63,  86,  130,   132,  133,  134,  214 

Ware  vs.  Hylton.  U.  S.  Sup. 
Ct.  1796:  3  Dallas,  199, 
Chase,  Paterson,  Wilson, 
CusHiNG,  Iredell,  JJ. 
Vol.  I,  238,  247,  260,  277,  307,  389 
401,  420,  537,  541,  5.53,  560,  561 
Vol.  II,  6,  7,  8,  9,  10,  n,  12 

19,  22,  28,  36,  38,  54 
146,  148,  246,  284,  321,  354 

Warner  vs.  Joy.  U.  S.  Sup. 
Ct.  1872;  17  Wallace.  2.53, 
Clifford,  J.  Same  as  Hol- 
den  vs.  Joy,  Vol.  II,  218 

Warr,  United  States  vs.  See 
United  States  vs.  Warr. 

Warren,  People  (N.  Y.)  vs. 
See  People  (N.  Y.)  vs.  War- 
ren. 

Warren,  State  of  Maryland  vs. 
See  Maryland  vs.  Warren. 

Warwick,  The  Amy.  See  Amy 
Warwick,  The. 


TABLE  OF  CASES, 


XCIX 


Page 

Washburn,  In  re.     K  Y.  Ct. 

of  Chan.  1819;  4  Jolins.  Ch. 

106,  Kent,  Chaa.,  Vol.  II,       248 
255,  270 
Washington,  People  (Gala.)  &c. 

vs.    See  People  tfcc.  vs.  Wash- 

inaton. 
Watson  vs.  Donnelly.    N.  Y. 

Sup.   Ct.   1809;    28  Barbour, 

653,  Allen,  J.,  Vol.  II,  37 

Watts,  United  States  vs.     See 

United  States  vs.  Wafts. 
Wau-pe-man-i|iia  vs.  Aldrich. 

U.  S.  Cir.  Ct.  ladiaua,  1S86; 

28  Fed.  Rep.  489,  Woods,  J., 

Vol.  II,  214 

Weaver,  Lowry  vs.     See  Lowry 

vs.  Weaver. 
Webh,    Leitensdorfer   vs.      See 

Lcitnisdorfer  vs.   Wi'bb. 

Webster  vs.  Reid.  U.  S.  Sup. 
Ct.  1850;  11  Howard,  437, 
McLean,  J.,  Vol.  I,  540 

Weed,  United  States  vs.  Uni- 
ted States  vs.  Weed. 

Weiberg  vs.  The  St.  Oloff.  See 
St.  Oloff,  The. 

Weil  and  La  Abra  cases.  See 
La  Abra  and  Weil  case. 

Weimer  vs.  Bimbury.  Sup. 
Ct.  Mich.  1874;  30  Mich.  201, 
CooLEY,  J.,  Vol.  I,      62,  550,  556 

Weld,  United  States  vs.  See 
United  States  vs.  Weld. 

Welhaveii,  WiUiams  vs.  See 
Williams  vs.  Welhaven. 

Wenie,  Frost  vs.  See  Frost  vs. 
Wenie. 

West  vs.  Cochran.  IT.  S.  Sup. 
Ct.  1854,  17  Howard,  403, 
Catron.  J.,  Vol.  II.  194 

Western  Cherokee  Indians  vs. 
United  States.  U.  S.  Ct.  of 
Claims,  18!)1;  27  Ct.  of  Clms. 
1,  NOTT,  .1.,  Vol.  II,  218,  235 

WestniorelaiiJ  vs.  United 
States.  U.  S.  Sup.  Ct.  1895; 
155  U.  S.  545,  Breweb,  J., 
Vol.  II,  231,  235 

Wetherbij,  Beecher  vs.  See 
Beecher  vs.  Wetherbj/. 

Wheeler,  Society  for  the  Prop- 
agation of  the  Gospel  vs.  See 
Society  tfeo.  vs.  Wheeler. 

Wheeling  Bridge  Co.,  Pennsyl- 
vania vs.  See  Pennsi/lcania 
vs.  Wheeling  Bridge  Co. 

Whiskey  Forty-Three  Gallons 
of,    United   States    vs.      See 


Page 
United    States     vs.      Forty- 
Three,  &c. 

White,  Mayer  vs.  See  Mayer 
vs.  White. 

White,  Texas  vs.  See  Texas 
vs.  White. 

White,  United  States  ex  rel., 
Bayard  vs.  See  Bayard 
vs.  United  States  ex  rel. 
White. 

Whitelaw  vs.  United  States. 
See  La  Ninfa.  The. 

Whitney  vs.  Robertson.  U. 
S.  Sup.  Ct.  1888;  124  U.  S. 
190,  Field,  J.,  affirming 
same  case  U.  S.  Cir.  Ct.  S.  D. 
N.  Y.  1884;  21  Fed.  Rep.  566, 
Wallace,  J.,  Vol.  I,  455,  471 
544,  553,  560,  5H1 
Vol.  II,  63,  69,  70,  86,  96,  106 

183,  362 

Whiton  vs.  Albany  Ins.  Co. 
Sup.     Ct.    Mass.    1871;    109 
Mass.  24,  Gray,  J.,  Vol.  I,  5,  544 
Vol.  II,  361 

Wiegrand,  In  re.  U.  S.  Dist. 
Ct.  S.  D.  N.  Y.  1877;  14 
Blatchford,  370,  Fed.  Cas. 
17,618,  Blatchford,  J., 
Vol.  II,  267 

Wiegman,  Hartranft  vs.  See 
Hartranft  vs.  Wiegman. 

Wi'/glesworth,  United  Statesvs. 
See  United  States  vs.  Wig- 
glesworth. 

Wither  vs.  United  States.  See 
Cnldera  Cases. 

Wilbiirn  vs.  State.  Sup.  Ct. 
Arkansas,  1860;  21  Ark.  198, 
Campton,  J.,  and  1895;  60 
Ark.  141,  Wood,  J.,  Vol.  I,     546 

Wilcke  vs.  Wilcke.  Sup.  Ct. 
Iowa,  1897;  102  Iowa,  173, 
Ghanoer,  .1.,  Vol.  II,  44 

Wildenhus  Case.  U.  S.  Sup. 
Ct.  1887;  120U.  S.  1,  Waite, 
Ch.  J.,  affirming  U.  S.  Cir. 
Ct.  N.  J.  1886;  28  Fed.  Rep. 
924,  Wales,  J.,  Vol.  II,  238 

333,  334 

Wilkim,  Elk  vs.  See  Elk  vs. 
Wilkins. 

Wilkinshaw,  Tobin  vs.  See  To- 
bin  vs.  Wilkinshaw. 

Willendson  vs.  The  Forsdkel. 
See  Forsdkel,  The. 

Willi nm,  The  Brig.  See  Brig 
William,  The. 

Williams  vs.  Bruffy.    U.  S. 


TABLE  OF  CASES. 


Page 

Sup.  Ct.  1877;  96  U.  S.  176. 
Field,  J.,  Vol.  II.  126 

Williams   vs.  Gibbes.    U.   S. 

Slip.    Ct.   1857;  -0    Howard, 
r.;^).  Nelson,  J.,  Vol.  II,         297 

Williams  vs.  Heard.  U.  S. 
Sup.  ct.  1891;  140  U.  S.  529, 
L.\MAK,  J,,  Vol.  IF,  292,  299,  301 

Williams  vs.  The  Welhaven. 
U.  S..Uist.  Ct.  Alabama,  1892; 
55  Fed.  Rep.  80,  TouLMiN,  J., 
Vol.  II,  332 

WHliaDis,  Jordan  vs.  See  Jor- 
dan vs.  Williams. 

Williams  vs.  Suffolk  Ins.  Co. 
U.  S.  Sup.  Ct.   1839;  13  Pe- 
ters, 415,  McLean,  J.,  Vol.  I,  537 
545,  551 
Vol.  II,  358,  361 

Wilsou  vs.  Wall.  U.  S.  Sup. 
Ct.  1867;  6  Wallace,  83, 
Grieb,  J.,  Vol.  II,  218 

Wilaon,  Callan  vs.  See  Callan 
vs.  Wilison. 

Wilson  County  vs.  National 
Bank.  See  Covnty  of  Wil- 
son vs.  National  Bank. 

Wilson,  Doe  vs.  See  Doe  vs. 
Wilson. 

IViLson,  Mann  vs.  See  Mann 
vs.  Wilson. 

Wilson,  State-  of  Neio  Jersey  vs. 
See  State  oj  New  Jersey  vs. 
M'ilson. 

Wilson,  United  States  vs.  See 
United  States  vs.  Wilson. 

Winans,  United  States  vs.  See 
United  States  vs.  Winans. 

Winberg,  Gillespie  vs.  See  Gil- 
lespie vs.  Winberg. 

Wing  Wong  vs.  United  States. 
See  Wong  Wing  vs.  United 
States. 

Winneij,  Cosgrove  vs.  See  Cos- 
grove  vs.  Winney. 

Winter,  New  Orleans  vs.  See 
New  Orleans  vs.  Winter. 

Winton''s  Lessee,  Cornet  vs. 
See  Cornet  vs.  Winton's  Les- 
see. 

Woman's  Bights  Case.  See 
Minor  vs.  Happersett. 

Wong  Kim  Ark,  United  States 
vs.  See  United  States  vs. 
Wong  Kim  Ark. 

Wong  Wing  vs.  United  States. 
U.  S.  Sup.  Ct.  1896;  163  U.S. 
228,  Shieas,  J.,  Vol.   I,   479,  537 
552,  557,  560 
VoL  II,  108,  109,  259 


Page 

Wong  Yung  Quy,  In  re.    U.  S. 

Cir.  Ct.  Cala.  188U;  (i  Sawyer, 
237;  2  Fed.  Hep.  624,  Saw- 
YEK,  J.,  Vol.  II,  51 

Wood  vs.  Wood.  Sup.  Ct.  Ar- 
kansas, 1891;  54  Ark.  172, 
Hemingway,  J.  Vol.  I,  543 

Woodruff  vs.  Parham.    U.  S. 
Sup.  Ct.  1868;  8  Wallace,  123, 
Miller,  J.,  Vol.  I,    120,  548,  549 
570,  571,   573,  575,  576,  578 
580,  581,  583 

Woods,  Lyons  vs.  See  Lyons 
vs.  Woods. 

Woodward,  Dartmouth  College 
vs.  See  Dartmouth  College 
vs.  Woodward. 

Woulsey,  Dodge  vs.  See  Dodge 
vs.  Woolsey. 

Woo  Qiiong,  United  States  vs. 
See  United  States  vs.  Quong 
Woo. 

Worcester  vs.  State  of  Geor- 
gia. U.  S.  Sup.  Ct.  1832;  6 
Peters,  515,  Marshall,  Ch. 
J.,  Vol.  I,  550,  558,  562 

Vol.  II,      36,   195,   203,  207,  208 
210,  211,  215,  227,  228,  246 

Warden,  Cat.  &  Ore.  Land  Co. 
vs.  See  Cal.  &  Ore.  Land 
Co.     vs.  Worden. 

Worthington,  Am.  Net  and 
Tivine  Co.  vs.  See  Am.  Net 
and  Twine  Co.  vs.  Worthing- 
ton. 

Wright,  Jackson  vs.  See  Jack- 
son vs.   Wright. 

Wunderle  vs.  Wunderle.  Sup. 
Ct.  Illinois,  1893;  144  111.  40, 
McGruder.  J.,  Vol.  II,       40,  43 

Wylie  vs.  Coxe.  U.  S.  Sup. 
Ct.  1853;  15  Howard,  415, 
McLean,  J.,  Vol.  II,  299 

Taker,  Haver  vs.  See  Haver 
vs.  Taker. 

Tankton,  County  of.  National 
Bank  vs.  See  National  Bank 
vs.  Count//  of  Tankton. 

Yeaker's  Heirs  vs.  Yeaker's 
Heirs.  Ct.  of  Appeals,  Ken- 
tucky, 1862;  4  Metcalf,  33, 
Stiles,  Ch.  J.,  Vol.  II,  46 

Telluw  Sun,  United  States  vs. 
See  United  States  vs.  Tellow 
Sun. 

Teong  Tung,  In  re.  See  Tung 
Teong,  In  re. 

Teiv ,  Tong,  United  States  vs. 
See  United  States  vs.  Yong 
Tew. 


TABLE   OF   CASES. 


CI 


Page 
Tick  Wo  vs.  Hopkins.     U.  S. 

Sup.  Ct.  1886;   118  IT.  S.  806, 
Matthews,    J.,  Vol.  I,      62,  479 
541,  556,  5.J8,  560,  561 
Vol.  II,  51,  121 

Yong  Yew,  United  Statea  vs. 
See  United  States  vs.  Yong 
Yew. 


Page 

Yo7-ba,  United  States  vs.  See 
United  States  vs.  Yorba. 

Young,  People  &c.  vs.  Stout. 
See  People  &c.  vs.  Stout. 

Yum,  Tom,  In  re.  See  Tom 
Yum,  In  re. 


THE 

TREATY-MAKING  POWER  OF 
THE  UNITED  STATES. 

BY 

CHARLES  HENRY   BUTLER. 


IXTRODUCTION. 

VIEWS  OF  THE  AUTHOK  ON  THE  TREATY-MAKING  POWER  OF  THE 
UNITED  STATES,  AND  THE  METHOD  OF  ITS  DISCUSSION  AS  THE 
SUBJECT-MATTER  OF  THIS  VOLUME. 


Section. 

1 — Government  of  the  United 
States  one  of  enumerated 
powers. 

2 — Exceptions  to  general  rule 
of  limitations  of  power*. 

3 — Author's  general  views  as 
to  extent  of  treaty-making 
power. 

4 — State  legislation  not  neces- 
sary to  carry  out  treaty 
stipulations. 

5 — Treaties  made  by  United 
States  Government  bind- 
ing on  all  States. 


Section. 

6 — Treaties  the  supreme  law  of 
the  land. 

7 — Sources  of  author's  informa- 
tion and  grounds  of  his 
oijinion. 

8 — Nationality  and  Sovereignty 
of  the  United  States  to  be 
first  considered. 

9 — Plan  of  discussion  of  sub- 
ject. 
10 — This  work  confined  to  United 
States  law  and  decisions; 
other  work  contemplated 
by  author. 


§  L  Goveruiiieut  of  United  States  one  of  enumerated 
powers. — The  Government  of  the  United  States  is  frequently, 
in  fact  generally,  referred  to,  as  one  of  delegated,  limited  or 
enumerated  powers ;  it  has  been  so  described  by  the  Supreme 


§1 


TREATY-MAKING  POWER  OF  THE  U.  S. 


Court/  and  by  einiueiit  coininentators ;  the  Constitution  un- 
doubtedly exju'essly  confers  certain  definite  and  prescribed 
powers  upon  tLie  Federal,  or  as  many  prefer  to  call  it,  the 
JS^ational  Government;  it  also  expressly  declares  that  the 
powers  not  delegatetl  thereby  are  reserved  to  the  States,  or 
to  the  people.-  There  can  be  no  doubt,  therefore,  as  a  general 
proposition,  applicable  to  the  exercise  of  many  of  its  preroga- 
tives, that  the  National  Government  is  limited  to  those  powers 
which  are  so  unequivocally  expressed  in,  and  conferred  by,  the 
Constitution  as  to  be  beyond  perad venture  or  dispute ;  it  must 
also  be  conceded  that,  in  all  controversies  in  which  State  sov- 
ereignty is  involved,  all  questions  as  to  the  extent  of  those 
powers  must,  as  far  as  possible,  be  answered  in  favor  of  ex- 
tending the  powers  of  the  States,  and  of  limiting  the  powers 
of  the  National  Government  as  closely  as  possible  to  the 
lines  laid  down  in  the  Constitution.  The  rights  of  the  States 
were  guarded  as  earnestly,  and  with  as  much  care,  in  1787 
as  they  have  been  at  any  time  since  then,  even  during  the 
bitterest  controversies  over  slavery  and  secession. 

Questions,  however,  have  frequently  arisen,  and  are  con- 
stantly arising,  as  to  the  extent  of  tlie  powers  vested  by  the 
people  in,  and  surrendered  by  the  States  to,  the  Central  Gov- 
ernment ;^  able  and  distinguished  expounders  of  the  Constitu- 
tion have  found  this  element  of  its  history  and  construction 


§1. 

i"Tlie  general  government, 
though  limited  as  to  its  objects,  is 
supreme  with  respect  to  those  ob- 
jects. This  principle  is  a  part  of 
the  Constitution;  and  if  there  be 
any  who  deny  its  necessity  none 
can  deny  its  authority." 

Cohens  vs.  Virr/inia,  1821,  6 
Wheaton,  264,  p.  381,  Marshall, 
Ch.  J. 

2 "The  powers  not  delegated  to 
the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States 
respectively  or  to  the  people." 
Article  X.  of  the  Amendments  to 
the  Constitution. 

3"  This  government  is  acknowl- 
9 


edged  by  all  to  be  one  of  enumer- 
ated powers.  The  principle  that 
it  can  ezercise  only  the  powers 
granted  to  it,  would  seem  too  ap- 
parent to  have  required  to  be  en- 
forced by  all  those  arguments 
which  its  enlightened  friends, 
while  it  was  depending  before  the 
people,  found  it  necessary  to  urge. 
That  principle  is  now  universally 
admitted.  But  the  question  re- 
specting the  extent  of  the  powers 
actually  granted  is  perpetually 
arising,  and  will  probably  continue 
to  arise,  as  long  as  our  system 
shall  exist." 

McCulloch  vs.  State  of  Maryland, 
1819,  4  Wheaton,  316,  p.  405,  Mar- 
shall, Ch,  J. 


INTRODUCTION. 


§1 


a  fertile  field  for  academic  investigation  and  discussion.  It 
has  also  afforded  the  Supreme  Court  of  the  United  States, 
the  creation  of  which  was  the  crowning  evidence  of  the 
practical,  as  well  as  the  theoretical,  genius  of  the  men  who 
framed  the  Constitution,'*  the  occasions  for  rendering  some  of 
its  ablest  decisions  in  the  delimitation  of  the  boundary  line  be- 
tween State  and  Federal  jurisdiction,  upon  which  have  been 
placed  the  monuments  bearing  the  warning  to  Federal  aggres- 
sion— "  Thus  far  shalt  thou  go  and  no  farther." 


*"The  establishment  of  the  Su- 
preme Court  of  the  United  States 
was  the  crowning  marvel  of  the 
wonders  wrought  by  the  states- 
manship of  America.  In  truth  the 
creation  of  the  Supreme  Court  with 
its  appellate  powers  was  the  great- 
est conception  of  the  Constitution. 
It  embodied  the  loftiest  ideas  of 
moral  and  legal  power,  and  al- 
though its  prototype  existed  in  the 
Superior  Courts  established  in  the 
various  States,  yet  the  majestic 
proportions  to  which  the  structure 
was  carried  became  sublime.  No 
product  of  government,  eitlier  here 
or  elsewhere,  has  ever  approached 
it  in  grandeur.  Within  its  appro- 
priate sphere  it  is  absolute  in  au- 
thority. From  its  mandates  there 
is  no  appeal.  Its  decree  is  law. 
In  dignity  and  moral  influence  it 
outranks  all  other  judicial  tribu- 
nals of  the  world.  No  court  of 
either  ancient  or  modern  times 
was  ever  invested  with  such  high 
prerogatives.  Its  jurisdiction  ex- 
tends over  Sovereign  States  as  well 
as  over  the  humblest  individual. 
It  is  armed  with  the  right  as  well 
as  the  power  to  annul  in  effect  the 
statutes  of  a  State  whenever  they 
are  directed  against  the  civil  rights, 
the  contracts,  the  currency  or  the 
intercourse  of  the  people.  It  re- 
stricts Congressional  action  to  Con- 
stitutional bounds.     Secure  in  the 


tenure  of  its  Judges  from  the  in- 
fluence of  politics,  and  the  violence 
of  prejudice  and  i^assion,  it  pre- 
sents an  example  of  judicial  inde- 
pendence unattainable  in  any  of 
the  States  and  far  beyond  that  of 
the  highest  Court  in  England.  Yet 
its  powers  are  limited  and  strictly 
defined.  Its  decrees  are  not  arbi- 
trary, tyrannical  or  capricious,  but 
are  governed  by  the  most  scrupu- 
lous regard  for  the  sanctity  of  law. 
It  cannot  encroach  upon  the  re- 
served rights  of  the  States  or 
abridge  the  sacred  privileges  of 
local  self-government.  Its  power 
is  never  exercised  for  the  purpose 
of  giving  effect  to  the  will  of  the 
Judge,  but  always  for  the  pur- 
pose of  giving  effect  to  the  will 
of  the  legislature,  or,  in  other 
words,  to  the  will  of  the  law.  Its 
administration  is  a  practical  ex- 
pression of  the  workings  of  our 
system  of  liberty  according  to  law. 
Its  Judges  are  the  sworn  ministers 
of  the  Constitution,  and  are  the 
High  Priests  of  Justice.  Acknowl- 
edging no  superior,  and  responsi- 
ble to  their  consciences  alone,  they 
owe  allegiance  to  the  Constitution 
and  to  their  own  exalted  sense  of 
duty.  Instructed  and  upheld  by  a 
highly  educated  bar,  their  judg- 
ments are  the  ripest  fruits  of  judi- 
cial wisdom.  Amenable  to  public 
opinion,  they  can  be  reached,  in 


§3 


TREATY-IMAKIXG  POWER  OF  THE  U.  S. 


§  2,  Exceptions  to  general  rule  of  limitations  of  power. 

— There  are,  liowever,  some  exceptions  to  this  general  rule ; 
there  are  certain  instances  in  which  the  Federal  Government 
not  only  possesses,  and  exercises,  powers  which  have  been 
delegated  to  it  by  the  people,  and  which  are  portions  of  the 
delegated  sovereignty'  as  enumerated  in  the  Constitution,  but 
in  which  it  also  possesses,  and  exercises  certain  other  powers, 
as  inherent  attributes  of  the  sovereignty  with  which  it  is 
clothed,  in  the  same  manner  as  all  other  fully  sovereign 
states  possess  and  exercise  such  powers;  one  of  the  most 
notable  instances  of  these  inherent  attributes  of  sovereignty 
is  the  treaty-making  power,  the  basis  of  discussion  in  this 
work ;  it  is  undoubtedly  one  of  the  most  far-reaching  and 
important  prerogatives  possessed  by  the  National  Govern- 
ment, because  through  it  not  only  the  internal  affairs  of  every 
State  in  the  Union  are  affected,  but  relations  are  established 
between  this  nation  and  all  the  people  composing  it,  with 
all  the  other  nations  and  peoples  of  the  world.  Although  the 
Xational  Government  possesses  this  power  under  the  Con- 
stitution, as  one  of  the  powers  expressly  enumerated  there- 
in, the  exercise  thereof  is  controlled  not  only  by  constitutional 
limitations  but  also  by  the  general  rules  of  law  applicable  to 
all  sovereign  powers  and  to  their  exercise  of  this  prerogative.^ 
§  3.  Author's  general  views  as  to  extent  of  treaty- 
making  power. — The  author  fully  appreciates  that  any  at- 
tempt to  extend  Federal  jurisdiction  to  matters  which  are 


case  of  necessity,  by  impeachment 
by  the  Senate  of  the  United  States. 
No  institution  of  purely  human 
contrivance  presents  so  many  fea- 
tures calculated  to  inspire  both 
veneration  and  awe."  Carson's 
History  of  the  Supreme  Court 
of  the  United  States,  pp.  6-8. 

§2. 

1 "  By  the  law  of  nations,  recog- 
nized by  all  civilized  States,  do- 
minion of  new  territory  may  be 
acquired  by  discovery  and  occupa- 
tion, as  well  as  by  cession  or  con- 
quest; and  when  citizens  or  sub- 
jects of  one  nation,  in  its  name, 
and  by  its  authority  or  with  its  as- 


sent, take  and  hold  actual,  contin- 
uous and  useful  possession,  (al- 
though only  for  the  purpose  of 
carrying  on  a  particular  business, 
such  as  catching  and  curing  fish, 
or  working  mines),  of  territory 
unoccupied  by  any  other  govern- 
ment or  its  citizens,  the  nation  to 
which  they  belong  may  exercise 
such  jurisdiction  and  for  such  pe- 
riod as  it  sees  fit  over  territory  so 
acquired.  This  princii^le  affords 
ample  warrant  for  the  legislation 
of  Congress  concerning  Guano 
Islands.  Vattel,  lib.  1,  c.  18; 
Wheaton  on  International  Law 
(8th  ed.),    §§  161,    165,    176,   note 


INTRODUCTION.  §  3 

not  clearly  expressed  in  the  Constitution  carries  with  it  the 
onus  probandi  to  its  fullest  extent.  He  is,  however,  so  firmly 
convinced  that  the  government  of  the  United  States  is  com- 
pletely endowed  with  all  the  essential  attributes  of  nation- 
ality and  sovereignty  in  regard  to  National  affairs  that  he 
feels  fully  justified  in  expressing  the  following  opinion: 

First :  That  the  treaty-making  power  of  the  United  States, 
as  vested  in  the  Central  Government,  is  derived  not  only  from 
the  powers  expressly  conferred  by  the  Constitution,  but  that 
it  is  also  possessed  by  that  Government  as  an  attribute  of 
sovereignty,  and  that  it  extends  to  every  subject  which  can 
be  the  basis  of  negotiation  and  contract  between  any  of  the 
sovereign  powers  of  the  world,  or  in  regard  to  which  the 
several  States  of  the  Union  themselves  could  have  negotiated 
and  contracted  if  the  Constitution  had  not  expressly  pro- 
hibited the  States  from  exercising  the  treaty-making  power 
in  any  manner  whatever  and  vested  that  power  exclusively 
in,  and  expressly  delegated  it  to,  the  Federal  Government. 

Second :  That  this  power  exists  in,  and  can  be  exercised  by, 
the  National  Government,  whenever  foreign  relations  of  any 
kind  are  established  with  any  other  sovereign  power,  in  regu- 
lating by  treaty  the  use  of  property  belonging  to  States  or  the 
citizens  thereof,  such  as  canals,  railroads,  fisheries,  public 
lands,  mining  claims,  etc. ;  in  regulating  the  descent  or  posses- 
sion of  property  within  the  otherwise  exclusive  jurisdiction 
of  States ;  in  surrendering  citizens  and  inhabitants  of  States 
to  foreign  powers  for  punishment  of  crimes  committed  out- 
side of  the  jurisdiction  of  the  United  States  or  of  any  State 
or  territory  thereof ;  in  fact,  that  the  power  of  the  United 
States  to  enter  into  treaty  stipulations  in  regard  to  all  mat- 
ters, which  can  properly  be  the  subject  of  negotiation  be- 
tween sovereign  states,  is  practically  unlimited,  and  that  in 
no  case  is  the  sanction,  aid  or  consent  of  any  State  necessary 
to  validate  the  treaty  or  to  enforce  its  provisions. 

Third :  That  the  power  to  legislate  in  regard  to  all  mat- 


104;  Halleck  on  International  Law, 
c.  6,  §§  7,  15;  1  Phillimore  on  In- 
ternational Law  (3d  ed.),  §§  227, 
229,  230,  232,  242;  1  Calvo  Droit 
International  (4tli  ed.),  §§  2G6,  277, 


300;    Whiton  vs.  Albany   Ins.  Co., 
109  Mass.  24,  31." 

Jones  vs.  United  States,  U.  S. 
Sup.  Ct.  1890,  137  U.  S.  202,  p.  212, 
Gkay,  J. 

5 


§  5  TREATY-MAKING  POWER  OF  THE  U.  S. 

ters  affected  by  treaty  stipulations  and  relations  is  co-exten- 
sive with  the  treaty-making  power,  and  that  acts  of  Congress 
enforcing  such  stipulations  which,  in  the  absence  of  treaty 
stipulations,  would  be  unconstitutional  as  infringing  upon 
the  powers  reserved  to  the  States,  are  constitutional,  and 
can  be  enforced,  even  though  they  may  conflict  with  State 
laws  or  provisions  of  State  constitutions. 

Fourth:  That  all  provisions  in  State  statutes  or  constitu- 
tions which  in  any  way  conflict  with  any  treaty  stipula- 
tions, whether  they  have  been  made  prior  or  subsequent 
thereto,  must  give  way  to  the  provisions  of  the  treaty,  or  act 
of  Congress  based  on  and  enforcing  the  same,  even  if  such 
provisions  relate  to  matters  wholly  within  State  jurisdiction. 

§  4.  State  legislatiou  not  necessary  to  carry  out  treaty 
stipulations. — So  far-reaching  is  this  treat^^-making  power, 
that  the  author  unhesitatingly  condemns  the  policy,  Avhich 
has  occasionally  been  adopted  by  the  United  States,  of  avoid- 
ing absolute  treaty  stipulations  as  to  matters  within  the  juris- 
diction of  the  several  States,  but  at  the  same  time  stipulat- 
ing to  urge  the  States  to  enact  legislation  necessary  to  obtain 
the  desired  results;  such  method  is  not  only  unnecessary, 
but  is  also  undignified ;  in  many  cases  the  results  are  not 
only  unsatisfactory,  as  no  distinct  obligations  are  created, 
but  they  are  frequently  productive  of  injustice,  as  general 
concessions  for  the  benefit  of  the  entire  Union  and  all  of  the 
inhabitants  thereof  may  be  lost  by  the  refusal  of  the  legis- 
lature or  people  of  a  single  State  to  adopt  the  necessary  leg- 
islation ;  in  fact,  history  shows  that  Article  VI  of  the  Con- 
stitution which  makes  treaties  the  supreme  law  of  the  land 
was  undoubtedly  framed  and  inserted  in  the  Constitution  for 
the  special  purpose  of  preventing  exactly  that  class  of  treaty 
stipulations  which,  under  the  Confederation,  had  been  tried 
on  several  occasions  and  found  wanting  in  every  instance.^ 

§  .5.  Treaties  made  by  United  States  Government  bind- 
ing on  all  States. — The  authorities  bearing  upon  this  sub- 
ject also  show  that  the  United  States  Government,  when  it 
exercises  the  treaty-making  power  in  regard  to  matters  which 


§4. 

^See  sec.  1.50,  chap.  Y;    sec.  211, 
chap.  VII;  sees.  266-72,  chap.  IX, 

6 


and  cases  cited,  and  opinions  re- 
ferred to,  in  those  sections. 


INTRODUCTION. 


§7 


are  otherwise  within  the  exclusive  jurisdiction  of  one  or  more 
States,  does  so  as  the  agent,  as  it  were,  for  and  on  behalf  of 
the  people  of  the  State  or  States  affected  by  the  treaty,  and 
as  such  agent  is  clothed  with  full  power  to  represent  and 
bind  thera.  As  the  States  are  absolutely  deprived  of  all 
treaty-making  power  by  express  Constitutional  limitations, 
it  is  only  through  the  intervention  of  the  Federal  Govern- 
ment, thus  exercised  on  their  behalf,  that  the  rights  of  the 
States  and  their  citizens,  in  their  relations  with  foreign  na- 
tions can  be  protected  and  conserved. 

§  6.  Treaties  the  Supreme  law  of  the  land. — The  deci- 
sions of  the  Supreme  Court  show  that  whenever  this  power 
has  been  exercised,  even  to  its  fullest  extent  in  regulating  by 
international  agreement  matters  which  otherwise  are  exclu- 
sively within  the  control  of  any  State,  those  provisions  of  the 
treaty  itself,  as  well  as  all  Congressional  legislation  subse- 
quently enacted  to  carry  them  into  effect,  have  been  sus- 
tained by  that  court  of  highest  power  and  of  last  resort  as 
being  within  the  sense  and  meaning  of  Article  VI.  of  the 
Constitution  which  declares  that  "  this  Constitution,  and  the 
Laws  of  the  United  States  which  shall  be  made  in  Pursuance 
thereof;  and  all  Treaties  made  or  which  shall  be  made, 
under  the  Authority  of  the  United  States  shall  be  the  su- 
preme Law  of  the  Land ;  and  the  judges  in  every  State  shall 
be  bound  thereby,  any  Thing  in  the  Constitution  or  Laws  of 
any  State  to  the  Contrary  notwithstanding."  ^ 

S  7.  Sources  of  author's  information  and  grounds  of  his 


§6. 

1 "  This  brief  and  comprehensive 
declaration  proposed  in  the  con- 
vention on  July  17,  1787,  by  Luther 
Martin,  of  Maryland,  and  passed 
unanimously,  stands  in  the  Consti- 
tution as  the  Bill  of  Rights  of  the 
Federal  Judiciary.  It  is  a  nail 
fastened  in  a  sure  place.  It  would 
have  been  wholly  in  vain  to  grant 
the  supreme  judicial  power  to  the 
Federal  Courts  without  this  solemn 
guaranty  against  any  remaining 
power  in  the  State  Courts,  or 
Judges,  to  nullify  or  impede  its  ex- 


ercise. The  supreme  power  must 
reside  somewhere,  and  the  basis  of 
the  American  constitutional  su- 
premacy is  nowhere  better  de- 
scribed than  in  Washington's  terse 
phrase,  in  his  letter  as  President  of 
the  Convention,  commending  the 
work  to  the  approval  of  the  States, 
as  the  '  giving  up  a  share  of  liberty 
to  preserve  the  rest.'  "  Address  of 
Mr.  William  Allen  Butler  on  "The 
Origin  of  the  Supreme  Court  of  the 
United  States  and  its  place  in  the 
Constitution,"  delivered  at  the 
Centennial  Celebration  of  the  or- 


§  7  TREATY-MAKING  POWER  OF  THE  U.  S. 

opiiiiou. — Although  the  author's  opinion,  that  the  treaty- 
making  power  is  undoubtedly  the  most  far-reaching  in  its 
scope  of  any  of  the  powers  possessed  by  the  Federal  Govern- 
ment, is  very  broadly  expressed,  it  is  based  upon  an  examina- 
tion of  the  history  and  construction  of  treaties  made  prior  to 
the  Confederation  and  the  adoption  of  the  Constitution,  as 
well  as  subsequently  thereto ;  of  the  proceedings  of  the  Federal 
Convention  in  which  the  Constitution  was  framed,  and  of  the 
conventions  of  the  several  States  to  which  it  was  submitted  for 
ratification ;  of  the  three  hundred  or  more  treaties  which  have 
been  entered  into  by  the  United  States  witli  foreign  powers 
and  which  relate  in  their  various  provisions  to  almost  every 
conceivable  subject  w^hich  can  be,  or  ever  has  been,  the  basis 
of  international  contract  or  agreement  between  Sovereign 
States,  and  which  have  frequently  affected,  and  in  many  in- 
stances still  affect,  the  individual  interests  of  States  and  citi- 
zens ;  of  the  frequent  utterances  in  Congress,  by  the  great 
masters  of  constitutional  law  when  these  questions  have  been 
raised  and  debated,  as  they  often  have  been,  in  both  the  Sen- 
ate and  the  House  of  Representatives ;  of  the  opinions  of  stu- 
dents and  expounders  of  tbo  Constitution  including  some  of 
the  most  eminent  legal  historians  of  our  Kation  ;  and  also  of 
the  opinions  of  the  judges  of  our  highest  courts,  both  Federal 
and  State,  who  have  been  called  upon  to  construe  the  Con- 
stitution in  this  respect.  After  careful  consideration  of  these 
authorities  the  author  feels  confident  that,  notwithstanding 
the  practice  which  at  one  time  was  pursued  by  the  framers 
of  our  treaties  of  avoiding  direct  stipulations  affecting  mat- 
ters within  State  control,  and  of  relegating  certain  classes  of 
treaty  obligations  to  State  legislation,  the  full  power  of  the 
United  States  to  make  such  stipulations  absolutely,  and  also 
to  enforce  them  by  appropriate  and  consistent  legislation  of 
Congress  is  supported  by  such  eminent  authorities  as  Alex- 
ander Hamilton,  James  Madison,  William  A.  Duer,  Patrick 
Henry,  William  Henry  Rawle,  Chancellor  Kent,  George 
Ticknor  Curtis,  Thomas  M.  Cooley,  John  IS^orton  Pome- 
roy ;  by  many  distinguished  Justices  of  the  Supreme  Court, 


ganization  of  the  Supreme  Court 
of  the  United  States,  New  York, 
February    4,    1890,    and   found    in 

8 


Carson's  History  of  the  Supreme 
Court,  p.  615. 


INTRODUCTION.  §  8 

including  Jay,  Field,  Bradley,  Miller,  Harlan,  Gray,  and 
Fuller,  and  many  others  too  numerous  to  mention  ;  and  it 
has  also  been  sustained  in  its  most  far-reaching  extent  by 
those  great  legal  luminaries,  John  Marshall,  and  Joseph 
Story,  whose  opinions,  like  beacon  lights,  have  so  often 
guided  the  Ship  of  State  through  dangerous  and  intricate 
passages  of  constitutional  construction,  and  Avhich  so  far 
from  growing  dimmer  with  age,  have  constantly  increased  in 
briUiancy  and  strength  from  the  respect  and  reverence  which 
have  ever  been  accorded  to  the  genius  and  integrity  of  their 
authors,  not  only  in  tliis  country,  but  in  every  land  where  law 
and  justice  are  synonymous.^ 

To  thoroughly  consider  the  subject  under  discussion,  the 
history  of  treaties  in  general  and  the  vesting  of  the  treaty- 
making  power  in  the  Central  Government  of  this  country 
must  be  examined  from  a  period  anterior  to  the  adoption 
of  the  Constitution ;  the  proceedings  of  the  Constitutional 
Convention  by  which  the  Constitution  was  framed,  as  well 
as  the  conventions  of  the  several  States  which  considered 
and  ratified  it,  must  also  be  carefully  investigated,  as  well  as 
the  expressions  of  the  then  leaders  of  public  opinion,  as  they 
were  contained  in  the  numerous  pamphlets  which  appeared 
upon  both  sides  of  the  question  during  the  period  that  the 
adoption  or  rejection  of  the  Constitution  was  the  chief  sub- 
ject of  thought  throughout  the  country.  Such  an  investiga- 
tion will  show  how  the  people  generally  regarded,  and  how 
thoroughly  they  understood,  this  subject  at  the  time  of  the 
adoption  of  the  Constitution  ;  it  will  also  develop  the  causes 
for,  and  the  method  of,  the  adoption  of  the  rule  by  which 
this  great  power  was  vested  in  the  Central  Government. 
In  addition  it  will  be  necessary  to  examine  the  opinions  of 
the  judges,  both  State  and  Federal,  who  have  since  then 
expounded  and  defined  the  exact  meaning  of  these  and  other 
cognate  and  analogous  clauses  in  the  Constitution.  It  is  the 
result  of  such  an  investigation  that  the  author  desires  to 
present  to  the  readers  of  this  volume. 

§  8.  Nationality  and  sovereignty  of  the  United  States  to 


§  7. 

iThe  opinions  of    these   states- 
men, authors  and  jurists,  as  they 


have  been  quoted  in  this  work,  can 
be  found  by  referring  to  the  index 
at  the  end  of  volume  II. 

9 


§  9  TREATr-MAKTNG  POWER  OF  THE  IT.  B. 

be  tirst  considered. — It  is  impossible,  however,  to  enter 
upon  any  discussion  of  the  subject  without  first  thorough!}'- 
examining  the  nature  of  the  Government  of  the  United 
States  and  reahzing  to  its  fullest  extent  one  great  fact  which 
such  an  examination  makes  apparent, — the  completeness 
of  the  nationality  and  sovereignty  of  the  United  States.  It 
is  only  through  the  exercise  of  those  inherent  qualities  of 
nationality  and  sovereignty  that  the  United  States  Govern- 
ment is  able  to  exercise  its  great  powers  for  the  general 
benefit  and  protection  of  the  whole  nation  and  all  of  the  ter- 
ritory under  its  jurisdiction,  as  well  as  for  the  benefit  and 
protection  of  the  several  States  and  the  citizens  thereof ;  of 
all  these  great  powers  the  treaty -making  power  is  probably 
the  greatest  and  the  most  far-reaching ;  at  all  events  it  is  the 
one  by  which  the  interests  of  all  those  who  owe  allegiance 
to  the  Central  Government,  and  over  whom  that  Government 
extends  protection,  have  often  been  conserved,  and  through 
which  those  great  results  have  been  obtained  which  have 
placed  the  United  States  in  the  foremost  rank  of  the  nations 
of  the  world. 

§  9.  Plan  of  discussion  of  subject. — The  subject-matter 
will,  therefore,  be  divided  into  three  parts  and  sixteen  subdi- 
visions or  chapters,  as  follows  : 

Part  I.  The  United  States  is  a  Nation  / — consisting  of 
three  chapters  {I-III)  in  which  the  nature  of  the  Government 
of  the  United  States  loill  he  considered  especially  in  7'egard 
to  its  relations  with  foreign  powers  and  its  attributes  of  na- 
tionality and  sovereignty  as  follows : 

I.  The  nationality  and  sovereignty  of  the  United  States, 
showing  that  the  Central  Government  possesses  not  only 
those  powers  which  are  delegated  to  it  by  the  Constitution 
in  regard  to  internal  affairs,  but  that  it  also  possesses  all  the 
attributes  of  sovereignty  possessed  by  any  other  sovereign 
nation  of  the  world  in  regard  to  external  relations. 

II.  The  nationality  and  sovereignty  of  the  United  States 
as  evidenced  by  the  acquisition  and  government  of  territory, 
shomng  that  it  is  only  by  the  possession  of  the  great  attri- 
butes of  sovereignty  that  the  United  States  has  been  able 
to  acquire,  and  govern,  the  territory  which  has  been  added 

10 


INTRODUCTION.  §  9 

to  the  domain  of  the  original  thirteen  States  and  of  the  Na- 
tion, as  they  existed  in  1787. 

III.  The  nationality  and  sovereignty  of  the  United  States, 
as  recognized  by  every  other  sovereign  power,  showing  that 
every  other  nation  recognizes,  and  always  has  recognized, 
the  Government  of  the  United  States  as  being  equally  sover- 
eign with  any  other  government  in  the  world. 

Part  II.  Historical  review  of  the  treaty-making iwv^er  of 
the  United  States  ^ — consisting  of  seven  chapters  {IV-X)  as 
follows : 

IV.  Treaty-making  power  in  general,  and  especially  as  an 
attribute  of  sovereignty,  as  exercised  by  central  governments 
of  federated  powers,  showing  that  in  nearly,  if  not  all,  in- 
stances of  federations  it  has  been  necessary  to  vest  the  Cen- 
tral Government  with  full  and  complete  power  in  regard  to 
the  external  relations  of  all  the  constituent  States  of  the  Fed- 
eration, even  as  to  those  matters  which  otherwise  would  be 
exclusively  under  State  jurisdiction. 

Y.  The  treaty-making  power,  as  it  was  exercised  for,  and 
on  behalf  of,  the  colonies  prior  to,  and  under,  the  Articles  of 
Confederation,  showing  that  from  the  earliest  inception  of 
the  ideas  of  independence  and  union  it  was  a  conceded  fact 
that  all  relations  with  foreign  powers  must  be  controlled 
by,  and  carried  on  through,  the  Central  Government;  also 
showing  the  co-ordinate  development  of  the  twin  ideas  of 
the  National  unity,  and  the  independence,  of  the  colonies 
and  States. 

VI.  Proceedings  of  the  Constitutional  Convention  of  1787, 
in  so  far  as  they  relate  to  treaties,  and  the  vesting  of  the 
treaty-making  power  in  the  Federal  Government,  showing 
that  it  was  the  unanimous  opinion  of  the  members  of  that 
Convention  that  the  Central  Government  should  have  the 
widest  scope  in  exercising  this  power,  and  that  it  was  essen- 
tial for  the  safety  of  the  Union  that  the  making  of  treaties, 
and  the  enforcement  thereof,  should  be  placed,  practically 
without  limitation,  in  the  hands  of  the  Federal  Govern- 
ment. 

VII.  Proceedings  of  the  constitutional  conventions  of 
the  several  States  by  which  the  Constitution  was  ratified, 
in  so  far  as  they  relate  to  the  provisions  vesting  the  treaty- 

11 


§  9  TREATY-MAKING  POWER  OP  THE  U.  S. 

making  power  in  the  Federal  Government,  showing  that  the 
great  extent  of  that  power  was  fully  appreciated  by  the  rep- 
resentatives of  the  people  and  of  the  States,  and  that  it  was 
acknowledged  by  them  that  the  safety  of  the  several  States 
demanded  its  exercise  by  the  Central  Government,  to  the  com- 
plete exclusion  of  the  States  themselves. 

YIIl.  The  treaty-making  power  as  a  factor  in  the  great 
National  debate  of  17S7-8,  showing  that  the  great  extent  and 
scope  of  the  power  was  thoroughly  discussed,  and  understood, 
by  the  people  prior  to  the  adoption  of  the  Constitution. 

IX.  Opinions  of  publicists,  historians  and  expounders  of 
the  Constitution  as  to  the  extent  and  scope  of  the  treaty- 
making  power  of  the  United  States,  showing  that  the  more 
this  subject  has  been  considered,  the  wider  have  become  the 
views  of  those  who  have  studied  it,  and  who  have  expressed 
their  views  in  regard  thereto. 

X.  The  treaty-making  power  in  Congress,  the  extent  and 
effect  of  ratification  by  the  Senate,  and  the  participation  by 
the  House  of  Representatives  in  such  ratification,  and  in  leg- 
islation based  upon  treaties,  as  the  same  has  been  the  subject 
of  Congressional  debate  and  Congressional  action. 

Part  III.  Judicial  decisions  affecting  the  treaty -making 
'power  of  the  United  States,its  extent  and  aj)2Jlicat ion  ; — con- 
sisting of  six  chapt&rs  {XI-XYI),  as  follows : 

XL  Decisions  of  the  Federal  and  State  courts  in  regard  to 
treaties  made  by  the  United  States,  and  provisions  therein, 
affecting  rights  and  matters  which,  in  the  absence  of  treaty 
stipulations,  are  wholly  within  State  jurisdiction,  showing 
that  in  all  such  cases  the  courts  of  last  resort,  both  State 
and  Federal,  have  sustained  the  treaty-making  power  of  the 
United  States,  and  held  that  such  stipulations  are  paramount 
and,  of  necessity,  supersede  all  State  laws  which  in  any 
manner  conflict  therewith. 

XIL  Decisions  of  the  Federal  courts  as  to  the  relative  ef- 
fects of  treaties  and  United  States  statutes,  showing  to  what 
extent  Congressional  legislation  is  necessary  to  enforce  trea- 
ties, how  far  it  can  supersede  them,  and  how  treaties  and 
United  States  statutes  must  be  construed  when  they  are  in 
conflict  with  each  other. 

XIII.  Treaties  of  cession,  involving  change  of  sovereignty 
12 


INTRODUCTION.  §  10 

over  the  ceded  territory,  and  the  effect  thereof  on  laws,  per- 
sons and  property. 

XIV.  The  treaty -making  power  as  it  has  been  exercised 
with  Indian  tribes,  and  the  relative  effect  of  statutes.  State 
and  Federal,  and  Indian  treaties,  with  some  reference  to  the 
status  of  the  Indian  tribes  in  the  United  States,  and  the 
rights  which  the  Indians  originally  possessed,  and  which 
they  have  since  acquired  under  treaties. 

XV.  Special  instances  in  Avhich  the  treaty-making  power 
has  been  exercised  by  the  United  States,  showing  that  in  the 
instances  referred  to,  both  as  to  the  treaties  themselves,  and 
the  subsequent  legislation  of  Congress  based  thereon,  the 
United  States  has  exercised  the  power  to  the  Avidest  extent, 
and  far  beyond  the  domain  of  Congressional  legislation  in 
the  absence  of  treaties. 

XVI.  Limitations  on  the  treaty-making  power  of  the 
United  States  as  the  same  have  been  suggested  by  publicists, 
and  in  the  opinions  of  the  Supreme  Court,  and  the  conclu- 
sions which  can  be  deduced  therefrom. 

§  10.  This  work  confined  to  United  States  law  and  de- 
cisions ;  otlier  work  contemplated  by  author. — In  discuss- 
ing the  subject-matter  of  this  work  only  authorities  of 
Federal  and  State  Courts  of  the  United  States  will  be  cited 
and  relied  upon.  The  question  of  the  extent  of  the  power 
to  be  exercised  by  the  United  States  Government  in  making 
and  enforcing  treaties,  is  one  wholly  within  our  own  munici- 
pal law,  and  is  not  one  of  international  law,  or  even  the  sub- 
ject of  diplomatic  correspondence ;  in  fact,  it  is  not  the  inten- 
tion of  the  author  in  this  volume  to  discuss  treaties  in  any 
aspect  except  as  to  the  power  of  the  United  States  Govern- 
ment to  make  them  with  foreign  powers,  and  their  effect 
when  so  made  upon  State  and  Federal  legislation.  As  to  all 
foreign  countries  the  United  States  must  be  considered  as 
possessing  plenary  powers,  otherwise  foreign  nations  would 
not  negotiate,  or  conclude  treaties  with  it ;  how  our  treaties 
shall  be  enforced  within  the  United  States — the  subject- 
matter  of  this  work — is  wholly  within  the  jurisdiction  of 
the  Federal  courts.  To  exceed  these  limits  would  be  to 
extend  the  work  to  other  fields  which  are  sufficiently  exten- 
sive to  require  individual  consideration. 

13 


§  10  TREATY-MAKING  POWER  OF  THE  U.  S. 

There  are  more  than  a  thousand  statutes,  and  a  far  greater 
number  of  judicial  decisions  which  affect  the  treat}'  and  for- 
eign relations  of  the  United  States,  and  which  must  be  exam- 
ined and  classified  in  order  to  full}'  cover  the  entire  domain 
of  what  nuiv  properly  be  called  "  treaty  law." 

The  author  hopes  to  })ublish  at  a  not  far  future  date  a 
third  volume  which  is  now  in  course  of  preparation,  and  to 
some  extent  cover  treaty  law  of  the  United  States,  including 
rules  as  to  construction  of  treaties,  and  the  rights  of  States 
and  individuals,  created  and  affected  thereby.  For  the  pres- 
ent, however,  the  attention  of  the  reader  will  be  confined  to 
the  questions  referred  to  in  the  previous  section,  especially 
those  relating  to  the  power  and  capacity  of  the  Central 
Government  of  the  United  States  to  negotiate  and  conclude 
those  agreements  with  foreign  nations,  which  are  so  essential 
to  the  prosperity  and  happiness  of  our  neighbors  and  our- 
selves, and  which,  in  view  of  the  far-reaching  extent  of 
American  commerce  and  enterprise,  are  daily  becoming  of 
more  and  more  importance. 
14 


PART  I. 

THE     UNITED    STATES    IS    A   NATION. 


CHAPTER  I. 


THE  NATIONALITY  AND  SOVEREIGNTY  OF  THE  UNITED   STATES. 


Section 

11 — Definitions  of  terms  used  in 
title  of  chapter. 

12— The  United  States  is  a  Na- 
tion. 

13 — States'  Eights  School  and 
broad  constructionists. 

14 — Eras  of  Constitutional  His- 
tory of  the  United  States. 

15— Marshall,  Story  and  Gray; 
Calhoun,  Taney  and 
Tucker. 

16 — J.  Randolph  Tucker's  views. 

17 — Discussion  limited  to  the 
treaty-making  power. 

18 — Duality  of  Government  of 
United  States, 

19 — Extent  of  original  State  sov- 
ereignty. 

20 — Original  nationality  and  sov- 
ereignty of  Central  Gov- 
ernment. 

21 — Residuum  of  power. 

22 — Powers  reserved  to  States  re- 
late to  internal  affairs. 

23 — Proposition  supported  by 
eminent  jurists. 

24 — National  unity  expressed  in 
Preamble  of  Constitution. 

25 — Ratification  of  Amendments 
by  States  result  of  delega- 
tion by  people. 

26— Supremacy  of  General  Gov- 
ernment as  to  objects 
within  its  domain. 


Skction 

27— Meaning  of  "The  People  of 
the  United  States." 

28— Views  of  Chancellor  Kent 
and  Joseph  Story. 

29— Samuel  F.  Miller's  views. 

30 — Justice  Field's  opinion. 

31 — Views  of  Justices  Gray  and 
Bradley. 

32 — Navassa  Islands  case. 

33— Right  of  United  States  to 
acquire  territory. 

34 — General  consensus  of  opinion 
in  support  of  nationality 
of  United  States. 

35 — Gradual  development  of 
theory  of  nationality. 

36 — Limitations  by  fundamental 
Ijrinciples. 

37 — Views  of  ex-President  Har- 
rison. 

38 — Unsoundness  of  Mr.  Harri- 
son's views. 

39 — Fundamental  principles  and 
the  first  ten  Amendments. 

40— Congress  compared,  as  to 
powers  in  national  mat- 
ters, with  Parliament  of 
Great  Britain. 

41 — Simultaneous  development 
of  nationality  and  limita- 
tions by  fundamental  prin- 
ciples of  natural  and 
healthy  growth. 


§  11.  Definition  of  Terms  used  in  Title  of  Chapter. — 

The  terms  used  in  the  title  of  this  chapter  would,  in  them- 
selves, afford  sufficient  matter  for  an  entire  volume ;  if  the 
author  desired  to  wander  from  the  main  course  of  his  subject 

16 


§  11  TREATY-MAKING  POWER  OP  THE  U.  S.  [CH.  I. 

he  could,  at  the  very  outset,  lincl  an  mtersecting  pathway 
which  would  lead  him  far  from  the  ultimate  goal. 

In  this  discussion,  however,  all  of  the  terms  are  used  in 
their  broadest  signilication,  and  the  subtle  distinctions  which 
can  be  drawn  between  the  various  uses  of  the  terms  do  not 
form  a  part  of  the  general  subject-matter  of  this  volume ; 
the  author  has,  however,  expressed  his  own  views  and  collated 
some  of  the  views  of  authors  and  jurists  in  regard  to  these 
terms  in  the  footnote  to  this  section.' 

NOTE  BY  THE  AUTHOR  ON  DEFINITIONS  OF  TERMS  USED. 

§11. 

^  The  definition  of  the  three  terms  used  in  the  title  of  this  chapter, 
to-wit:  nationality,  sovereignty  and  United  States,  are  more  within  the 
domain  of  a  work  on  political  science  than  of  one  on  the  legal  prin- 
ciples under  consideration;  the  author  does  not  intend,  therefore,  to 
enter  into  any  elaborate  dissertation  upon  the  exact  meaning  of  the 
terms,  which  are  simply  used  in  their  generally  accepted  sense.  It 
may  not  be  out  of  place,  however,  to  give  in  these  notes  the  author's 
conceptions  of  those  terms,  as  of  course  differences  of  opinion  exist  as 
to  their  meaning. 

Nationality. — Nationality  is  used  in  the  sense  that  the  people  of  the 
United  States  constitute  one  nation,  as  stated  in  the  decisions  of  Chief 
Justice  Marshall  in  Cohens  vs.  Vlrfjinia,  and  Mr.  Justice  Giay  in  the 
Legal  Tender  and  Chinese  Exclusion  cases,  referred  to  hereafter,  as  dis- 
tinguished from  the  federal  element  of  citizenship;  there  is  no  nation- 
ality of  New  York,  Pennsylvania  or  California,  although  those  States  in 
many  respects  are  sovereign  States;  since  the  Civil  War  there  is  no  doubt 
that,  while  there  is  an  allegiance  growing  out  of  State  citizenship,  the 
allegiance  owed  by  the  people  of  the  United  States  to  the  United  States 
is  paramount  to  every  other  tie  of  citizenship  or  allegiance.  Nor  is 
the  word  "nationality"  used  to  distinguish  the  people  of  the  United 
States  as  a  people  rather  than  as  a  race;  the  people  of  the  United  States 
forming,  as  they  do,  a  nation,  are  necessarilj'^  composed  of  many  races 
— Christian  and  Mohammedan — Anglo-Saxon,  Teutonic  and  Latin — Jew 
and  Gentile — all  of  these,  as  well  as  other  racial  elements,  unite  in 
forming  one  people  as  a  nation;  in  this  sense,  therefore,  "nationality" 
signifies  as  to  the  people,  the  element  of  homogeneity  by  which  all  these 
people  are  united,  regardless  of  internal  and  sectional  differences,  into 
one  great  nation  owing  allegiance  to  a  common  government  as  against 
all  of  tlie  other  governments  of  the  world;  and  that  such  government 
and  the  various  departments  composing  it,  is  the  only  medium  through 
which  this  great  nation,  and  all  of  those  elements  composing  it,  can 
deal  with  any  external  govei'nment,  influence  or  power. 

Sovereignty. — This  is  a  word  which  has  generally  been  discussed  more 

16 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OP  THE  U.  S.    §  12 

§  12.  The  United  States  is  a  Nation. — It  is  impossible  to 
appreciate  the  scope  of  the  treaty-making  power  of  the  Gov- 

fiom  the  standpoint  of  political  science  than  of  legal  application.  The 
various  tlieoi'ies  as  to  the  existence  of  sovereignty,  its  nature,  and  how  it 
is  exercised  and  controlled,  are  numerous  and  diverse;  some  of  them, 
in  fact,  are  diametrically  opposite  to  each  other,  although  they  are  sup- 
ported respectively  by  eminent  authorities  on  the  subjects  of  political 
science  and  jurisprudence;  these  theories,  however,  can  be  divided  in 
two  great  classes,  one  of  which,  based  on  the  divine  right  of  kings,  places 
sovereignty  in  the  rulers  and  permits  them  to  exercise  over  their  sub- 
jects authority  which  they  possess  inherently,  owing  to  the  fact  that 
they  are  rulers,  and  have  so  become,  by  the  principles  recognized  in  the 
country  over  which  they  rule;  under  this  theory  the  great  residuum  of 
power  or  sovereignty  remaius  in  the  ruler,  and  any  limitations  must  be 
construed  adversely  to  the  people  ruled  over  and  favorably  to  the  rul- 
ing power.  The  other  class  includes  what  may  be  called  the  Anglo- 
Saxon  theory,  which  is  that  complete  sovereignty  originally  exists  in 
its  entirety  in  the  people,  and  that  only  such  portion  of  sovereignty  has 
been  vested  in  the  rulers  as  the  people  themselves  have  expressly  dele- 
gated to  the  ruling  power,  the  residuum  remaining  in  the  people. 

There  can  be  no  doubt  that  the  American  principle  is  that  complete 
sovereignty  is  vested  in  the  people  of  a  nation,  and  that  the  people  of 
the  United  States  possess  sovereignty  in  its  entirety.  In  adopting,  as 
we  have,  a  dual  system  of  government,  the  sovereignty  of  the  people 
has  been  partly  delegated  to  the  State  governments,  and  partly  to  the 
Central  Government,  and  the  people  retain  only  that  portion  of  sov- 
ereignty which  has  not  been  vested  in  the  ruling  power  of  the  States 
respectively,  or  of  the  United  States  in  its  national  capacity.  This  sov- 
ereignty of  the  people  is  a  part  of  the  heritage  of  the  Anglo-Saxon  race; 
as  such  it  naturally  exists  in  all  nations  composed  of  Anglo-Saxons;  it 
does  not,  however,  necessarily  exist  naturally  in  people  of  other  races; 
it  may  be  that  the  sovereignty  exercised  by  governmental  powers  of 
the  nations  of  the  Latin  races  over  their  people,  and  especially  their 
colonies,  has  been,  by  long  usage  and  prescription,  recognized  by  those 
people  and  colonists  as  proceeding  from  the  ruling  class  downward,  in- 
stead of  from  the  ruled  classes  upwards;  in  this  way  an  apparent  diffi- 
culty in  handling  our  recently  acquired  possessions  may  be  completely 
overcome.  By  the  Treaty  of  Paris  of  1898,  the  sovereignty  over  Spanish 
possessions  was  transferred  to  the  United  States;  the  United  States  suc- 
ceeds to  the  sovereignty,  as  it  was  recognized  by  the  subjects  of  Spain; 
it  remains  for  the  United  States  to  clothe  the  people  of  the  ceded  posses- 
sions, as  it  has  done  in  many  respects  as  to  the  people  of  Porto  Rico,  with 
the  same  degree  of  autonomy  as  other  portions  of  our  people  possess; 
although  the  change  may  be  made  gradually  the  people  of  the  new  pos- 
sessions will  finally  succeed  to  all  of  the  rights  possessed  by  other  people 
of  the  United  States.  There  is  no  inconsistency  with  historical  prece- 
dents in  thus  gradually  admitting  those  people  to  privileges  which  they 
have  never  had  before;  a  rule  of  international  law  which  has  been  uni- 

2  17 


§  12  TREATY-MAKING  POWER  OF  THE  U.  S.  [OH.  I. 

eminent  of  tlie  United  States  without  taking  into  considera- 
tion the  great  cardinal  fact  that  the  United  States  is  a 

versally  recognized  is  that  the  governmental  conditions  of  inhabitants  of 
ceded  territory  remain  the  same  until  altered  by  the  new  sovereignty, 
there  are  no  legal  difficulties,  therefore,  in  recognizing  that  the  sov- 
ereignty trivusferred  by  the  former  rulers  may  be  of  a  different  nature 
from  the  sovereignty  existing  in  the  new  ruling  power. 

The  expressions  of  some  of  the  leading  authorities  on  international 
law  in  regard  to  the  term  sovereignty  are  appended  to  this  note. 

BLUNTSCHLl'S   VIEWS. 

Bluntschli,  in  his  Theory  of  State  which  has  been  translated  and  pub- 
lished in  English, devotes  the  whole  of  chapters  I.  to  IV.,  pages  463-481, 
to  the  discussion  of  the  word  sovereignty.  On  pages  464-5  he  states 
that  Sovereignty  implies: 

"  1.  Independence  of  the  authority  of  any  other  State.  Yet  this  in- 
dependence must  be  understood  as  only  relative.  International  law, 
which  binds  all  States  together,  no  more  contradicts  the  Sovereignty 
of  States  than  constitutional  law,  which  limits  the  exercise  of  public 
authority  within.  Even  the  separate  States  {Lclnderstaten)  in  a  com- 
posite State  may  be  regarded  as  sovereign,  although  dependent  in  essen- 
tial matters,  e.  g.,  foreign  policy  and  control  of  the  army. 

"2.  Supreme  public  dignity — what  the  Romans  called  majestas. 

"  3.  Plenitude  of  public  power,  as  opposed  to  mere  particular  pow- 
ers. Sovereignty  is  not  a  sum  of  particular  isolated  rights,  but  is  a 
general  or  common  right:  it  is  a  'central  conception,'  and  is  as  im- 
portant in  Public  as  that  of  property  is  in  Private  Law. 

"  4.  Further,  it  is  the  highest  in  the  State.  Thus  there  can  be  no 
political  power  above  it.  The  French  Seigneurs  of  the  middle  ages 
ceased  to  be  sovereign  when  they  were  compelled  to  submit  in  all  essen- 
tial matters  to  the  king  as  their  feudal  lord.  The  German  Electors  were 
able  to  maintain  sovereignty  in  their  own  dominions  from  the  fourteenth 
century,  because  they  exercised  supreme  authority  in  them  as  their 
proper  right. 

"  5.  Unity,  a  necessary  condition  in  every  organism.  The  division  of 
sovereignty  paralyses  and  dissolves  a  State,  and  is  therefore  incompati- 
ble with  its  healthy  existence."  The  Theory  of  the  State,  by  Blunt- 
schli, pp.  464-^65. 

Chapter  II.,  page  467,  is  devoted  to  answering  the  question  to  whom 
sovereignty  belongs.  He  refers  to  the  difference  between  the  sover- 
eignty in  the  people  and  the  sovereignty  in  the  State,  and  in  a  note, 
page  473,  he  discusses  what  the  sovereignty  of  the  people  means  as  fol- 
lows: 

"  The  phrase  '  sovereignty  of  the  people '  is  sometimes  used  to  express, 
not  the  supremacy  of  the  majority,  but  only  the  idea  that  a  form  of 
State  or  a  manner  of  government,  which  is  incompatible  with  the  ex- 
istence and  welfare  of  the  majority  of  the  people,  cannot  be  maintained, 

18 


CH.  I.]     NATIONALITY  AND  SOVEEEIGNTY  OF  THE  U.  S.    §  12 

NATION ;  that  as  to  all  matters  connected  with  foreign  rela- 
tions it  is  not  federal  in  its  character,  but  national^  and  that 

or,  that  the  form  of  the  State  and  the  government  are  there  for  the 
people — an  idea  which  is  true,  but  badly  expressed. 

"Again,  if  by  'sovereignty  of  the  people'  it  is  meant  that  the  au- 
thority of  the  State  is  dericed  origlnaUi/  from  the  will  of  the  majority, 
we  must  indeed  admit  that  many  democratic  constitutions,  and  even 
some  monarchical  (e.  g.,  the  Roman  Empire,  the  French  Empire),  are 
based,  in  theory  or  principle  at  least,  on  the  voluntary  act  of  the  ma- 
jority of  the  people.  In  the  same  way  the  constitutions  of  several 
Swiss  Cantons  declare,  not  that  the  people  [VoUc)  is  sovereign,  but 
that  '  the  sovereignty  resides  in  the  peojjle  as  a  whole  (aufder  Gesammt- 
heit  des  Volks  beruhe),  and  is  exercised  by  the  Great  Council,'  (e.  g., 
the  Zurich  Constitution  of  1831,  sec.  1).  But  even  this  principle  would 
not  be  applicable  to  all  States,  and  the  term  'sovereignty,'  which 
expresses  a  permanent  right,  is  inappropriate  when  applied  to  particu- 
lar and  transitory  acts. 

"Finally,  if  the  phrase  ' sovereignty  of  the  people'  be  understood, 
as  has  often  happened  in  practice,  to  imply  that  the  people,  as  distinct 
from  the  government,  or  even  any  powerful  and  excited  multitude,  is 
justified  in  arbitrarily  overthrowing  the  government  or  destroying  the 
constitution,  this  is  an  idea  which  is  altogether  to  be  condemned,  and 
which  is  irreconcilable  even  with  democratic  principles. 

"  (In  England,  the  question  of  sovereignty  has  in  recent  times  been 
chiefly  discussed  in  connection  with  the  famous  definition  of  Austin, 
Jurisprudence,  Lect,  vi.:  'If  a  determinate  human  superior,  not  in  a 
habit  of  obedience  to  a  like  superior,  receive  habitual  obedience  from 
the  bulk  of  a  given  society,  that  determinate  superior  is  Sovereign  in  that 
society,  and  the  society,  including  the  superior,  is  a  society  political  and 
independent.'  This  abstract  analysis  of  the  conception  of  sovereignty, 
which  is  quite  unhistorical  and  difficult  to  apply  in  practice,  is  criti- 
cised by  Maine,  Early  History  of  Institutions,  Lect.  xii,  xiii.  See  also 
F.  Harrison  on  T/ie  Emjlish  School  of  Jurisprudence,  in  Fortnightly  Re- 
vievj,  vol.  30  (1878);  Clark's  Practical  Jurisprudence,  a  Comment  on  Aus- 
tin, Parti.,  ch.  xiv. ;  Holland's  Jurisprudence,  ch,  iv.) "  The  Theory 
of  the  State,  by  Bluntschli,  pp.  473-474. 

JUDGE   COOLEY'S   VIEWS. 

"A  state  is  a  body  politic,  or  society  of  men,  united  together  for 
the  purpose  of  promoting  their  mutual  safety  and  advantage  by  the 
joint  efforts  of  their  combined  strength.  The  terms  nation  and  State 
are  frequently  employed,  not  only  in  the  law  of  nations,  but  in  common 
parlance,  as  importing  the  same  thing,  but  the  term  nation  is  more 
strictly  synonymous  v/ith.  people,  and  while  a  single  State  may  embrace 
different  nations  or  peoples,  a  single  nation  will  sometimes  be  so  divided 
politically  as  to  constitute  several  States. 

"In  American  constitutional  law  the  word  State  is  applied  to  the  sev- 
eral members  of  the  American  Union,  while  the  word  nation  is  applied 

19 


§  12  TREATY-JIAiaNG  POWER  OF  THE  U.  S.  [CH.  I. 

as  such  it  possesses,  and  exercises,  every  function  exercisable 
by  any  other  sovereign  government  in  the  world. 

to  the  whole  body  of  the  people  embraced  withiu  the  jurisdiction  of  the 
federal  government. 

"  Sovereignty,  as  applied  to  States,  imports  the  supreme,  absolute, 
uncontrollable  power  by  which  any  State  is  governed.  A  State  is  called 
a  sovereign  State  when  tliis  supreme  power  resides  within  itself,  whether 
resting  in  a  single  individual,  or  in  a  number  of  individuals,  or  in  the 
whole  body  of  the  people.  In  the  view  of  international  law,  all  sov- 
ereign States  are  and  must  be  equal  in  rights,  because  from  the  very 
definition  of  sovereign  State,  it  is  impossible  that  there  should  be,  in 
respect  to  it,  any  political  superior. 

"  The  sovereignty  of  a  State  commonly  extends  to  all  the  subjects  of 
government  within  the  territorial  limits  occupied  by  the  associated 
people  who  compose  it;  and,  except  upon  the  high  seas,  which  belong 
equally  to  all  men,  like  the  air,  and  no  part  of  which  can  rightfully  be 
appropriated  by  any  nation,  the  dividing  line  between  sovereignties  is 
usually  a  territorial  line.  In  American  constitutional  law,  however, 
there  is  a  division  of  the  powers  of  sovereignty  between  the  national  and 
State  governments  by  subjects;  the  former  being  possessed  of  supreme, 
absolute,  and  uncontrollable  power  over  certain  subjects  throughout  all 
the  States  and  Territories,  while  the  States  have  the  like  complete  power, 
within  their  respective  territorial  limits,  over  other  subjects.  In  i-egard 
to  certain  other  subjects,  the  States  possess  powers  of  regulation  which 
are  not  sovereign  powers,  inasmuch  as  they  are  liable  to  be  controlled, 
or  for  the  time  being  to  become  altogether  dormant,  by  the  exercise  of 
a  superior  power  vested  in  the  general  government  in  respect  to  the  same 
subjects."  Cooley's  Constitutional  Limitations,  6th  edition  pp.  3^,  and 
also  see  cases  cited  in  footnotes. 

GEORGE   TICKNOR   CURTIS'    DEFINITION; 

"Lest,  however,  the  controversy  may  degenerate  into  a  dispute  about 
the  meaning  of  a  word,  it  may  be  well  to  define  here  what  I  mean  by 
'sovereignty,'  and  what  Mr.  Tyler  appears  to  mean.  He  says  (Tyler  I., 
28o):  'Sovereignty  is  the  toill  of  the  sovereign  people,  and  government 
which  is  a  mere  servant  or  trustee  can  never  be  sovereign,  for  it  wields 
delegated  powers  only.  The  people  might  have  a  hundred  governments, 
each  a  specific  power,  without  surrendering  an  atom  of  sovereignty. 
Sovereignty  being  the  will  of  the  people,  is  spiritual  and  indivisible.  It 
may  grant  powers  for  the  common  good,  but  the  invocation  of  those 
powers  is  of  the  essence  of  free  will.  Accordingly,  all  that  talk  of  the 
Jackson- Webster-Madison  school  of  sovereignty,  part  delegated  to  the 
Federal  Government  and  part  to  the  State  Government,  is  the  merest 
clap-trap  ever  devised.'  He  adds  in  a  note,  '  The  error  lies  in  confusing 
powers,  which  are  capable  of  division,  with  sovereignty,  which  is  not.' 

"'Sovereignty'  as  I  use  the  term,  as  it  is  used  by  other  American 
publicists,  means  simply  the  right  to  govern.  Undoubtedly,  sovereignty 
is  the  will  of  the  sovereign  people;  and  in  our  American  sense  all  gov- 

20 


CH.  I.]     NATIONALITY  AND  SOVEREIGNTY  OF  THE  IT.  S.    §  12 

This  is  perfectly  consistent  with  the  fullest  retention  by 
the  State  Governments  of  the  control  of  all  matters  pertain- 

ernment  is  derived  from  that  will.  But  when  it  is  said  that  govern- 
ment can  never  be  sovereign,  there  is  a  begging  of  the  question,  for  it 
may  be  the  will  of  the  people  that  a  particular  government  shall  exer- 
cise the  powers  of  sovereignty,  or,  ia  other  words,  shall  hold  and  exer- 
cise the  power  of  governing.  I  have  elsewhere  said  that  the  frainers  of 
the  Constitution  of  the  United  States  made  a  great  discovery  in  the 
science  of  government,  which  was  that  i)olitical  powers,  or  the  powers 
of  government,  may  be  distributed  by  the  sovereign  people  among  differ- 
ent governments,  part  of  them  being  assigned  to  one  class  of  public 
servants  or  trustees,  and  the  residue  being  retained  by  the  sovereign 
people,  and  bestowed  according  to  their  pleasure,  on  another  class  of 
public  servants  and  trustees.  It  is  therefore  just  as  correct  to  speak 
of  the  sovereignty  of  the  Federal  Government  as  it  is  to  speak  of 
the  sovereignty  of  the  States;  for  in  either  case  what  is  meant  is  the 
right  to  govern  on  certain  subjects  and  relations.  This  idea  of  sover- 
eignty is  entirely  different  from  the  European  idea.  Vattel,  who  is 
quoted  by  Mr.  Tyler,  was  entirely  right,  in  the  European  sense,  in  say- 
ing, 'that  every  sovereignty  properly  so  called,  is,  in  its  own  nature, 
one  and  indivisible.'  It  is  so  in  the  European  sense,  but  not  in  the 
American.  In  Great  Britain,  for  example,  the  sovereignty  is  held  by 
the  king  and  the  two  houses  of  Parliament,  and  the  people  have  no 
power,  save  by  a  revolution,  to  do  anything  but  what  the  king,  lords, 
and  commons  in  Parliament  assembled  prescribe  and  ordain.  The  chief 
executive  ruler,  who  is  called  tlie  Hovereujn,  is  so  designated  because  he 
or  she  is  the  chief  executive  ruler,  and  not  because  he  or  she  has  any 
sovei'eign  powers  separate  from  the  conjoint  action  of  the  reignin"' 
monarch  and  the  two  houses  of  Parliament.  In  some  of  the  other 
European  countries  the  sovereignty  is  held  by  the  monarch  alone;  in 
others,  in  recent  times  especially,  the  sovereignty  is  held  and  exercised 
by  the  conjoint  action  of  the  executive  head  and  other  bodies;  but  in 
none  of  them  is  there  the  same  sovereignty  of  the  people  that  there  is 
in  the  American  system.  For  this  reason,  among  others,  it  is  rare  to 
find  a  European  writer  of  a  former  period  or  of  later  times  who  has  a 
correct  understanding  of  our  system  of  government.  I  once  had  an 
amusing  but  very  instructive  proof  of  this.  Fifty  years  ago,  being  in 
England,  I  was  told  by  a  very  eminent  English  judge  (no  less  a  person 
than  the  late  Lord  Campbell,  then  Chief-Justice  of  the  Queen's  Bench, 
afterwards  Lord  Chancellor)  that  he  could  not  understand  the  distinc- 
tion between  the  jurisdiction  of  our  Federal  and  our  State  Courts.  When 
I  explained  to  him  that  it  is  founded  on  the  fact  that  the  Federal  Gov- 
ernment has  the  exclusive  right  to  govern  on  certain  subjects  and  rela- 
tions, and  that  as  to  other  subjects  and  relations  the  separate  States 
have  the  exclusive  right  to  govern,  he  replied  that  I  had  given  him  in- 
formation which  he  never  had  before.  At  the  same  time,  he  owned  that 
this  was  contrary  to  all  English  ideas,  inasmuch  as  their  system  does 

21 


^  12  TREATY-:S[AKING  POWER  OF  THE  U.  S.  [CH.  I. 

ing  to  their  internal  affairs,  and  also  with  the  well  estab- 
lished rule  and  Constitutional  provisions,  that,  as  to  those 

not  admit  of  sucli  a  partition  of  the  powers  of  sovei-eiguty."     Curtis' 
Constitutional  History  of  tlie  United  States,  vol.  2,  pp.  520-521. 

J.  K.  tuckeb's  views. 

"  The  two  rival  theories  of  government  may  therefore  be  described  as 
follows:  The  polity  of  individualism  and  the  polity  of  paternalism. 

"  In  the  ancient  world  the  system  of  paternalism  was  most  pi-evalent, 
and,  as  a  late  writer  has  very  strongly  said,  '  the  Hellenic  State,  like  the 
ancient  State  in  general,  because  it  was  considered  all-powerful,  actually 
possessed  too  much  power.  It  was  all  in  all.  The  citizen  was  nothing, 
except  as  a  member  of  the  State.  His  whole  existence  depended  on  and 
was  subject  to  the  State.  .  .  .  The  independence  of  the  family,  home- 
life,  education,  even  conjugal  fidelity,  were  in  no  way  secvire  from  State 
interference;  still  less,  of  course,  the  private  property  of  the  citizens. 
The  State  meddled  in  everything,  and  knew  neither  moral  nor  legal 
limits  to  its  power.  It  disposed  of  the  bodies,  and  even  of  the  talents, 
of  its  members.'     (Bluntschli's  Theory  of  the  State,  page  37.) 

"The  ideal  republic  of  Plato  was  a  system  under  which  all  individ- 
ualism was  merged  in  the  State,  and  everything  was  regulated  by  it,  as 
the  parent  of  its  citizens;  and  while  he  clearly  held  the  governor  should 
not  consider  his  own  good,  but  only  the  good  of  the  government  for 
whom  he  was  steward,  yet  he  held  that  the  State  was  created  so  that  all 
might  be  happy  to  the  fullest  extent  by  the  State  giving  hajipiness  to 
every  one. 

"  The  history  of  this  system  of  political  thought  repeated  itself  about 
two  centuries  ago  in  the  Patriarcha  of  Sir  Robert  Filmer,  the  champion 
of  the  House  of  Stuart.  In  this  work  be  maintained  that,  by  derivative 
title  from  God  througb  Adam,  there  bad  been  transferred  to  the  king 
the  original  patria  potestas  of  the  family,  and  that  to  this  royal  patriarcha 
absolute  obedience  was  due  by  all  and  to  him  were  confided  the  care 
and  training  of  his  children — the  men  and  women  of  the  Nation.  This 
was  the  patriarcha  of  the  Stuarts,  which  had  its  first  condemnation  on 
the  scaffold  where  Charles  I.  was  beheaded,  and  in  the  abdication  of 
the  last  of  the  Stuarts  in  1688. 

"  The  paternal  government,  the  patriarcha,  is  based  on  falsehood  and 
is  a  political  fraud.  It  takes  the  paternal  name  to  sanction  its  absolute 
authority,  but  discards  the  paternal  duty  in  administering  government. 
A  father  in  name,  it  is  without  his  natural  love  to  mitigate  tyranny,  or 
to  do  equal  justice  among  its  people.  It  claims  unlimited  power  to  dis- 
pense blessings  or  cursings  at  its  will.  It  has  petted  parasites  attached 
to  itself,  because  they  feed  upon  it,  and  it  draws  the  resources  with 
which  to  supply  them  from  the  disinherited  mass  of  its  children,  whom 
it  exhausts,  but  never  helps.  It  has  its  foster  children  and  its  found- 
lings—its favorites  and  its  victims — and  burdens  many  for  the  benefit 
of  the  few."  Tucker  on  the  Constitution,  vol.  1,  §  61. 
22 


CH,  I.]     NATIONALITY  AND  SOVEEEIGNTY  OF  THE  U.  S.   §  12 

matters,  the  Central  Government  is  one  of  delegated  or 
enumerated  powers  only,  with  the  residuum  of  control  re- 
maining in  the  States  and  in  the  people. 

PROFESSOR  BLISS   ON   SOVEREIGNTY. 

Professor  Bliss  in  a  brief  treatise  on  Sovereignty  published  by  Little, 
Brown  &  Co.,  1885,  has  collated  numerous  opinions  as  to  the  definition 
of  the  word  "  sovereignty,"  both  in  its  general  use  and  in  its  particular 
use  as  to  Federal  States. 

He  collates  the  arguments  and  quotes  liberally  from  text-book  writers  j 
in  regard  to  the  United  States  he  declares  on  page  72  that  the  Federal 
Union  forms  a  body  politic,  a  State,  a  nation,  and  that  while  the  term 
United  States  is  "  geographical  and  indicates  a  union  of  societies  called 
States,  it  is  also  the  name  of  an  organized  body  created  by  the  people 
for  governmental  purposes.  It  is  itself  a  State.  ,  .  .  That  with  us 
there  is  such  a  Union,  such  a  State,  is  matter  of  fact  and  matter  of 
law.  Its  existence  is  a  fact;  its  character,  the  nature  and  extent  of  its 
powers,  involve  questions  of  law.  The  Union  embraces  every  charac- 
teristic of  a  State  except  the  general,  the  unlimited  jjower,  except  the 
idol  of  sole  sovereignty. 

"  The  national  name  has  been  the  occasion  of  much  quibbling  and  word- 
jingling.  The  Congress  of  United  Colonies  became  a  Congress  of  United 
States,  and  in  the  treaty  of  peace  one  party  was  called  the  United  States 
of  America.  This  name  was  continued  when  the  Articles  of  perpetual 
Confederation  were  changed  for  a  Constitution  of  government,  when  a 
State  was  organized.  Had  a  new  name — as  Alleghania,  or  some  other 
— been  adopted,  the  fact  of  a  body  politic  might  have  more  clearly  ap- 
peared ;  but  the  name  so  naturally  used  seems  to  suggest  a  co-operation 
of  States  rather  than  an  organic  State  formed  by  union.  But  a  name 
proves  nothing.  We  seldom  invent  words  even  for  new  things;  they 
are  suggested  by  likes,  are  more  or  less  figurative,  are  used  in  divers 
senses;  only  in  mathematics,  and  not  always  there,  are  they  found  of 
exact  meaning.  In  a  given  case  we  must  know  the  connected  facts  be- 
fore we  can  see  their  sense.  Contemporaneous  history  is  a  part  of  a 
constitution;  the  thing  done,  the  actual  organization  and  powers,  rather 
than  a  phrase,  decides  the  character  of  a  political  society.  By  knowing 
that  history,  by  seeing  what  was  done, — the  new  framewoi'k  of  the 
Union,  and  what  it  was  to  do, — we  can  understand  the  term  'State'  as 
applied  to  the  local  bodies,  and  the  term  '  United  States '  as  applied  to 
the  whole."     Bliss  on  Sovereignty,  pp.  73-74. 

tucker's  blackstone. 
"9.  Since,  according  to  the  fundamental  principles  of  both  the  Fed- 
eral and  State  Constitution,  and  Government,  the  supreme  power  (or 
Jura  summi  imperii)  resides  in  the  people,  it  follows  that  it  is  the  right 
of  the  people  to  make  laws.  But  as  the  exercise  of  that  right  by  the 
people  at  large  would  be  equally  inconvenient  and  impracticable,  the 
constitution  of  the  State  has  vested  that  power  in  the  General  As- 
sembly of  the  Commonwealth;  and  the  Constitution  of  the  United 

23 


§  12  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  I. 

The  moment,  however,  that  the  local  individual  interests 
of  any,  or  all,  of  the  States  are  eliminated,  the  Central  Gov- 

States  has  reposed  the  exercise  of  the  same  power  as  it  relates  to  the 
Federal  Goveruiuent,  ia  the  Congi-ess  of  the  United  States;  a  body 
composed  either  immediately,  or  mediately,  of  Representatives  of  the 
People;  the  House  of  Representatives  being  the  immediate  delegates 
of  the  people  in  their  individual  capacity;  the  Senate  representing 
them  in  their  political  capacity,  as  forming  different  States;  the  latter 
although  not  chosen  by  the  people,  themselves,  yet  being  chosen  by  the 
State  Legislatures,  which  have  no  rights,  nor  authority,  nor  even  an 
existence,  but  from  the  people,  must  be  considered  in  the  same  light 
as  the  Representatives  who  are  immediately  chosen  by  them.  It  is 
from  these  express  provisions  both  in  the  State,  and  Federal  Constitu- 
tion, and  not  from  metaphysical  deduction,  that  the  State,  and  Federal 
Legislatures  derive  the  power  of  making  laws.  See  Constitution  of 
Virginia,  Art.  8,  C.  U.  S.  Art.  1."  Tucker's  Blackstone,  vol.  1,  p.  52, 
note.  See  also  Von  Hoist's  Constitutional  Law  of  the  United  States, 
§  15  et  seq. 

United  States. — The  term  United  States  has  given  rise  to  a  great 
deal  of  discussion;  the  words  are  used  sometimes  as  meaning  States 
that  are  united,  either  in  their  individual  capacity  as  separate  States, 
or  collectively  as  a  federation;  at  other  times  the  term  is  used  as  the 
name  of  a  government  exercising  either  federal  or  national  powers,  as 
the  case  maybe;  it  is  also  used  as  a  geographical  expression  for  the 
territory  composed  of,  and  owned  by,  the  various  States  and  the  Fed- 
eral Government,  within  the  limits  over  which  the  United  States  Gov- 
ernment exercises  jurisdiction. 

This  interchangeable  use  of  one  term  necessarily  gives  rise  to  many 
peculiar  questions,  which  can  only  be  decided  by  determining  the  sense 
in  which  the  words  are  used  on  the  particular  occasion.  If,  instead  of 
United  States  of  America,  a  name  had  been  given,  such  as  Columbia, 
or  America,  to  the  country  as  a  whole,  many  of  these  difficulties  would 
have  been  obviated;  in  fact,  in  other  countries  this  difficulty  does  not 
arise  as  each  separate  element  is  represented  by  a  different  name,  for 
instance,  with  Great  Britain,  the  United  Kingdom  refers  to  England, 
Scotland,  Ireland  and  Wales;  British  Empire,  on  the  other  hand,  com- 
prehends the  United  Kingdom  and  its  colonies  and  dependencies,  while 
the  government  is  expressed  by  a  term  such  as  Her  (now  His)  Britannic 
Majesty's  Government.  The  single  word  England,  or  Great  Britain,  has 
never  been  used  indiscriminately  to  indicate  a  combination  of  different 
territories,  the  government  thereof,  and  the  geographical  limits  of  the 
whole. 

In  fact,  so  various  have  the  uses  of  the  term  United  States  been  that 
there  does  not  seem  to  be  any  settled  and  uniform  rule  as  to  whether  it 
is  to  be  grammatically  construed  in  the  singular,  or  in  the  plural  number; 
the  author  has  stated  in  the  text  that  if  one  of  the  two  words  is  to  be 
construed  as  an  adjective  and  the  other  as  a  noun,  they  must  be  con- 
24 


CH.  I.]     NATIONALITY  AND  SOVEKEIGNTY  OF  THE  U.  S.    §  12 

ernment  passes  from  its  Federal  character  into  that  of  its 
National  character,  and  represents  in  that  capacity,  not  a  col- 

sidered  as  requiring  a  plural  construction,  but  if  the  expression  is  used 
as  indicating  either  the  country  itself,  or  the  govern  nent  exercising 
jurisdiction  thereover,  the  two  words  should  certain'y  be  used  as  a 
single  name,  and  construed  as  a  proper  noun,  singular,  and  the  author 
has  endeavored  to  adhere  consistently  to  this  rule. 

This  construction  seems  now  to  be  generally  adopted;  in  many  of  the 
decisions  of  the  Supreme  Court,  however,  the  term  United  States  in  all 
of  its  different  significations  will  be  found  followed  by  a  verb  in  the 
plural  number;  even  Mr.  Justice  Gray,  whose  theories  of  nationality 
and  unity  are  perhaps  the  most  pronounced  of  any  Justice  who  ever  sat 
upon  the  Supreme  Court  bench,  has  declared  that  the  1  Jnited  States  are 
a  nation,  and  in  this  respect  he  has  followed  Chief  Justice  Marshall, 
who  made  a  similar  declaration. 

The  author,  however,  considers  that  wherever  the  words  United 
States  are  used  in  the  sense  that  the  framers  of  the  Constitution  might 
have  used  the  word  Columbia,  or  the  word  America,  had  that  corporate 
title  been  adopted,  should  be  followed  by  is  instead  of  are  exactly  as 
the  names  France,  England,  Germany  or  The  Argentine  Confederation 
are  all  used  in  the  singular  number. 

ATTORNEY  GENERAL,  GRIGGS'  POSITION. 

The  definition,  and  proper  use,  of  the  term  United  States  are  involved 
in  the  suits  now  pending  before  the  Supreme  Court  of  the  United  States 
in  which  the  status  of  our  newly  acquired  territory  is  involved,  and  the 
position  taken  by  the  United  States  Government  in  regard  to  the  term 
United  States  is  set  forth  in  the  brief  submitted  by  Attorney  General 
John  W.  Griggs,  in  the  case  of  Goetze  vs.  United  Staten,  which  was  argued 
in  December,  1900.  On  pages  128  to  1.32  his  views  are  stated  as  follows 
under  the  points  entitled  "  Meanings  of  the  term  'United  States,'"  and 
"The  Source  of  Political  Power"  : 

"  This  designation  is  first  used  in  the  Declaration  of  Independence,  is 
continued  in  the  Articles  of  Confederation,  and  in  the  present  Consti- 
tution. 

"  It  has  different  significations,  according  to  the  connection  and  the 
sense  in  which  it  is  used.     It  may  signify: 

"  1.  The  corporate  name  of  the  nation  or  governmental  entity,  the 
same  as  was  provided  in  the  Articles  of  Confederation,  which  declared 
'  the  stile  of  this  Confederacy  shall  be  the  United  States  of  America.' 

"2.  The  States  united — referring  to  the  several  States  composing  the 
Union. 

"  In  this  sense,  of  course,  it  excludes  Territories. 

"3.  The  international  sense,  designating  the  extent  of  our  domain  as 
a  sovereign  nation. 

"  In  this  sense  it  includes  all  territory  under  our  dominion  wherein  no 
other  nation  has  sovereignty  even  such  as  may  be  under  our  control  by 
temporary  conquest,  as  Tampico,  Mexico,  during  the  Mexican  war  (F/em- 

25 


§  12  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  I. 

lection  of  States  as  a  federation,  but  the  entire  country  as  a 
National  unit,  without  regard  to  the  internal  boundaries  of 
States  or  territories. 

ing  vs.  Page)  ;  while  in  a  domestic  sense  it  includes  geographically  the 
States  of  the  Union  and  such  territory  as  the  President  and  Senate  have 
by  treaties  expressly  annexed  to  and  made  part  of  the  United  States, 
and  such  as  Congress  and  the  President,  by  act  or  resolution,  have  ex- 
pressly annexed  to  and  made  part  of  the  United  States,  as  the  Hawaiiaa 
Islands. 

"Under  the  first  head  are  classed  such  expressions  as: 

The  Treasury  of  the  United  States, 

Service  of  the  United  States, 

Coin  of  the  United  States, 

Seat  of  government  of  the  United  States, 

President  of  the  United  States, 

Government  of  the  United  States, 

Office  of  honor,  profit,  or  trust  under  the  United  States, 

Office  under  the  authority  of  the  United  States, 

Credit  of  the  United  States. 
"Under  the  second  head  are  such  expressions  as: 

We,  the  people  of  the  United  States, 

Congress  of  the  United  States, 

Senate  of  the  United  States, 

To  establish  a  uniform  rule  of  natui'alization  and  uniform  laws  on 
the  subject  of  bankruptcy  throughout  the  United  States, 

Time  of  choosing  electors,  etc.,  to  be  the  same  throughout  the 
United  States, 

Duties,  imposts,  and  excises  shall  be  uniform  throughout  the 
United  States. 
"  All  the  authority  of  the  United  States  is  derived  from  the  people  of 
the  States.  The  people  of  the  Territories  do  not  and  cannot  share  or 
contribute  to  that  authority.  The  people  of  the  States  alone  elect  Con- 
gressmen; the  States  choose  Senators  and  electors.  Congress  alone, 
composed  of  Senators  and  Representatives  from  the  States,  can  make 
laws  for  the  government  of  the  whole  nation.  No  Territorial  legislature 
can  possibly  be  empowered  to  legislate  for  any  portion  of  the  United 
States.  Government  by  the  people  under  our  system  means  by  the  peo- 
ple of  the  several  States.  A  republican  form  of  government  is  guar- 
anteed to  the  States,  but  not  to  Territories.  Outside  the  area  of  the 
United  States  considered  as  a  union  of  States  there  is  no  political  power, 
no  guaranty  of  republican  government,  no  pledge  against  local  discrim- 
inations by  way  of  port  charges,  or  regulations  of  commerce,  or  revenue, 
or  tax  on  exports;  nor  any  rule  of  uniformity  as  to  duties,  imposts,  and 
excises. 

"  The  judicial  power  of  the  United  States  as  defined  by  the  Constitution 
does  not  extend  to  territory.  Territorial  courts  are  established  under 
the  clause  which  authorizes  Congress  to  make  all  needful  rules  and  reg- 

26 


CH.  I.]     NATIONALITY  AND  SOVEREIGNTY  OP  THE  U.  S.    §  12 

To  sum  it  up  in  a  single  sentence,  as  to  State  matters  and 
internal  affairs,  the  United  States  are  a  federation,  as  to  gen- 

ulations  respecting  the  territory  belonging  to  the  United  States:  Insur- 
ance Co.  vs.  Canter,  1  Peters,  511;  Clinton  vs.  Englebrecht,  13  Wall.  447. 

"In  Flephurn  vs.  Ellzey  (2  Cranch,  445,  1805),  Chief  Justice  Marshall 
held  that  a  citizen  of  the  District  of  Columbia  could  not  maintain  an 
action  as  a  citizen  of  a  State  within  the  meaning  of  the  Constitution 
against  a  citizen  of  Virginia.  In  support  of  the  jurisdiction  Mr.  Lee  in- 
sisted that  to  give  the  term  State  a  limited  construction  would  deprive 
the  citizens  of  the  District  of  general  rights  of  citizens  of  the  United 
States  and  put  them  in  a  worse  condition  than  aliens.  He  put  the  ques- 
tion whether  in  view  of  the  provision  that  '  No  tax  or  duty  shall  be  laid 
on  articles  exported  from  any  State  '  Congress  can  lay  a  tax  or  duty  on 
articles  exported  from  the  District;  and  also  whether  Congress  can  con- 
stitutionally give  a  preference  to  the  ports  of  the  District.  The  Chief 
Justice  said,  page  452: 

"  'Butastheactof  Congress  obviously  uses  the  word  "  State"  in  refer- 
ence to  that  term  as  used  in  the  Constitution,  it  becomes  necessary  to 
inquire  whether  Columbia  is  a  State  in  the  sense  of  that  instrument. 
The  result  of  that  examination  is  a  conviction  that  the  members  of  the 
American  confederacy  only  are  the  States  contemplated  in  the  Consti- 
tution.' 

"  '  The  House  of  Kepresentatives  is  to  be  composed  of  members  chosen 
by  the  people  of  the  several  States;  and  each  State  shall  have  at  least 
one  Representative. 

"  '  The  Senate  of  the  United  States  shall  be  composed  of  two  Senators 
from  each  State. 

"  '  Each  State  shall  appoint,  for  the  election  of  the  Executive,  a  niimber 
of  electors  equal  to  its  whole  number  of  Senators  and  Representatives. 

"  '  These  clauses  show  that  the  word  State  is  used  in  the  Constitution  as 
designating  a  member  of  the  Union,  and  excludes  from  the  term  the 
signification  attached  to  it  by  writers  on  the  law  of  nations.' 

"  InNew  Orleansvs.  Winter  (1  Wheaton,  91, 1816),  it  was  heldthatacit- 
izen  of  the  Mississippi  Territory  could  not  sue  a  citizen  of  a  State.  Chief 
Justice  Marshall  said,  page  94: 

"  '  It  has  been  attempted  to  distinguish  a  Territory  from  the  District  of 
Columbia,  but  the  court  is  of  opinion  that  this  distinction  cannot  be 
maintained.  They  may  differ  in  many  respects,  but  neither  of  them  is 
a  State  in  the  sense  in  which  that  term  is  used  in  the  Constitution.' 

'"In  the  recent  case  of  Ilooe  vs.  Jamieson  ( 166  U.  S.  395 ),  Chief  Justice 
Fuller  followed  Chief  Justice  Marshall,  saying,  page  397: 

"  '  We  see  no  reason  for  arriving  at  any  other  conclusion  than  that  an- 
nounced by  Chief  Justice  Marshall  in  Hepburn  vs.  Ellzey  (2  Cranch,  445), 
February  term,  1805,  "  that  the  members  of  the  American  confederacy 
only  are  the  States  contemplated  in  the  Constitution;  "  that  the  District 
of  Columbia  is  not  a  State  within  the  meaning  of  that  instrument;  and 
that  the  courts  of  the  United  States  have  no  jurisdiction  of  cases  between 
citizens  of  the  District  of  Columbia  and  citizens  of  a  State.' " 

27 


§13 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  I. 


eral  matters,  affecting  foreign  affairs  or  territory  held  in 
common,  the  United  States  is  a  nation. 

To  deny  this  proposition  is  to  assert  that  the  United  States 
is  not  a  completely  sovereign  power,  and  therefore  is  not 
entitled  to  rank  as  one  of  the  great  and  sovereign  powers  of 
tlie  world ;  this  indeed  would  be  a  mortifying  position  for  a 
country  with  over  seventy-tive  million  inhabitants  and  a  ter- 
ritorial area  of  over  three  million  square  miles. ^ 

§  13.  States'  Rights  School  aud  Broad  Constructionists. 
— Notwithstanding  the  absolute  necessity  of  clothing  the 
Central  Government  with  the  fullest  powers  of  sovereignty 
in  this  respect,  advocates  of  the  States'  Rights  School  have 
persisted  and  to  some  extent,  although  not  so  much  as  for- 
merly, still  persist  in  maintaining  the  doctrine  that  no  such 
complete  condition  of  nationality  and  sovereignty  either  ex- 


Tlie  converse  of  the  Attorney  General's  proposition  will  be  found  in 
the  briefs  tiled  by  the  opposing  counsel.  See  also  views  of  ex-President 
Harrison  on  meaning  of  terms  "United  States"  and  "Sovereignty," 
in  North  American  Review,  January,  1901,  referred  to  in  §  37,  p.  63,  post. 

Since  this  portion  of  this  volmne  was  completed  the  Supreme 
Court  has  decided  several  cases  involving'  the  status  of  some  of  the 
recently  acquired  possessions  of  the  United  States,  notably  Porto 
Rico  and  Hawaii.  Those  opinions  are  referred  to  at  leng'th  under 
§§61a-61//,  pp.  117,  et  seq.,  and  other  sections  there  referred,  to. 
The  status  of  territories  and  the  extent  of  congressional  power 
thereover  are  discussed  at  length  in  those  opinions.  See  DcLima  vs. 
Bidwell,  Dowu'^s  vs.  Bidwell,  and  other  Insnhtr  Cases  decided  May  27, 
1901,  and  reported  in  volume  182,  United  States  Reports,  and  ab- 
stracts of  which  are  in  appendix  at  end  of  this  volume. 


§12. 

1  Cohens  vs.  Virginia,  U.  S.  Sup. 
Ct.  1821,  6  Wheaton,  264,  Maksh- 
ALL,  Ch.  J.,  and  see  extract  from 
opinion,  section  29,  post. 

American  Insurance  Co.  vs.  Can- 
ter, U.  S.  Sup.  Ct.  1828,  1  Peters, 
511,  Marshall,  Ch.  J. 

JuiUiard  vs.  Greenman  {Legal- 
Tender  case),  1884,  110  U.  S.  421, 
Gray,  J. 

In  re  Lau  Ow  Bew,  U.  S.  Sup.  Ct, 

1891,  141  U.  S.  583,  Fuller,  Ch.  J. 

Law  Ow  Bew  vs.  United  States,  U.  S. 

Sup.   Ct.   1892,   144  U.  S.  47,  FuL- 

28 


LER,  Ch.  J.,  and  see  extract  under 

note  to  sec.  379,  Vol.  II,  pp.  98  et  seq. 

Fong  Yue  Ting  vs.  United  States, 

U.  S.  Sup.  Ct.  1893,  149  U.  S.  698, 

(iUAY,  J. 

Lem  Moon  Sing  vs.  United  States, 
U.  S.  Sup.  Ct.  1895,  158  U.  S.  538, 
Harlan,  J.,  and  see  extract  under 
sec.  379,  Vol.  II,  p.  107. 

See  also  the  numerous  cases  cited 
in  the  opinions  of  the  court  in  the 
above  cases;  also  the  cases  collated 
in  §§  23,  et  seq.,  post ;  and  the  In- 
sular Cases  under  §  61,  pp.  117, 
et  seq. 


CH.  I.]     NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.    §  13 


ists,  or,  under  our  form  of  government  can  exist,  and  that 
even  as  to  the  treaty-making  power  the  Central  Government 
is  limited  in  scope,  both  as  to  the  subject-matter  which  can  be 
affected  by  treaties,  and  the  method  in  which  those  subjects 
which  are  admittedly  within  its  proper  scope  can  be  handled. 
Ever  since  the  adoption  of  the  Constitution  there  have  been 
two  parties  as  to  its  construction  and  the  extent  and  nature 
of  the  powers  of  the  Central  Government ;  one  of  these  parties 
has  favored  broad  construction  and  wide  powers,  while  the 
other  has  insisted  upon  narrow  construction  and  limited  pow- 
ers.^ 


§13. 

1  The  doctrine  of  the  States'  Rights 
School  is  expressed  in  the  resolu- 
tions adopted  in  1798,  by  the  State 
Lefjislature  of  Kentucky  on  No- 
vember 14tli,  and  by  the  Legislature 
of  Virginia  on  December  24th. 
The  subsequent  declarations  of  the 
Hartford  Convention  in  1814,  and 
the  nullification  acts  of  South 
Carolina,  in  1833,  as  well  as  the 
whole  series  of  actions  on  the  part 
of  those  States  in  which  the  States' 
Rights  doctrine  prevailed,  were 
based  on  the  declarations  contained 
in  the  Kentucky  and  Virginia 
Resolutions. 

It  is  not  within  the  scope  of  this 
volume  to  enter  into  any  discussion 
as  to  the  authorship  of  those  reso- 
lutions. The  reader  is  referred  to 
McMaster's  Histoi-y  of  the  People 
of  the  United  States,  vol.  II., 
chap.  11,  p.  420;  Von  Hoist's  Con- 
stitutional History  of  tlie  United 
States,  vol.  I.,  chap.  IV. ;  Curtis' 
History  of  the  Constitution,  vol.  II., 
chap.  I.,  as  well  as  other  detailed 
histories  of  the  United  States  in 
which  the  history  of  those  resolu- 
tions, and  the  connection  therewith 
of  Thomas  Jefferson,  James  Madi- 
son, the  two  Nicholases  and  others 
is  discussed  at  length.  While  the 
Resolutions  were  the  outcome  of 


the  Alien  and  Sedition  Laws  which 
had  then  been  recently  passed  by 
Congress,  as  a  matter  of  fact,  they 
were  simply  the  expression  of  the 
views  of  the  then  ultra  anti-feder- 
alists and  the  enactment  of  those 
laws  was  made  the  excuse  of  utter- 
ing them.  Tlie  sentiment  con- 
tained in  the  first  of  the  nine 
resolutions  adopted  by  Virginia 
has  always  been  the  keynote  of  the 
view  of  the  States'  Rights  party. 

It  is  as  follows: 

"Resolved,  that  the  several  States 
composing  the  United  States  of 
America  are  not  united  on  the 
principle  of  unlimited  submission 
to  their  general  Government;  but 
that,  by  a  compact  under  the  style 
and  title  of  a  Constitution  for  the 
United  States,  and  of  Amendments 
thereto,  they  constituted  a  general 
Government  for  special  purposes, 
delegated  to  that  Government  cer- 
tain definite  powers,  reserving,  each 
State  to  itself,  the  residuary  mass 
of  rights  to  their  own  self  govern- 
ment; and  that  whensoever  the 
general  Government  assumes  un- 
delegated powers,  its  acts  are  un- 
authoritative, void,  and  of  no  force; 
that  to  this  compact  each  State  ac- 
ceded as  a  State,  and  is  an  integral 
party,  its  co-States  forming,  as  to 
itself   the   other  party;    that  the 

29 


j^ 


TREATY-lMLiKING  POWER  OF  THE  U.  S. 


[CH.  I. 


§  14.  Eras  of  Coustitiitioual    History  of  the    Uuited 
States. — There  are  two  distinct  periods  or  eras  in  the  con- 


Government  created  by  this  com- 
pact was  not  made  the  exclusive 
or  liual  judge  of  tlie  extent  of  the 
powers  delegated  to  itself;  since 
that  would  have  made  its  discretion, 
and  not  the  constitution,  the  meas- 
ure of  its  powers;  but  that,  as  in 
all  other  cases  of  compacts  among 
powers  having  no  common  judge, 
each  party  has  an  equal  right  to 
judge  for  itself  as  well  of  infrac- 
tions as  of  the  mode  and  measure 
of  redress." 

The  Virginia  and  Kentucky  res- 
olutions were  reiterated  in  1838  in 
a  series  of  resolutions  introduced 
by  John  C.  Calhoun  in  the  Senate 
and  adopted,  some  of  which  are 
quoted  at  length  as  they  are  a  good 
expression  of  the  ultra  views  of  the 
States'  Rights  School  before  the 
Civil  ^Yar.  They  refer  particularly 
to  slavery,  which  was  natural  in 
view  of  the  necessity  of  maintain- 
ing that  institution. 

The  resolutions  Avere  as  follows : 

On  the  12th  of  January,  1838, 
Mr.  Calhoun  embodied  the  South- 
ern position  in  certain  resolutions 
which  he  introduced  in  the  Senate 
of  the  United  States.  The  first 
three  of  these  resolutions  were  as 
follows: 

"  1.  Resolved,  That,  in  the  adop- 
tion of  the  Federal  Constitution, 
the  states  adopting  the  same  acted, 
severally,  as  free,  independent  and 
sovereign  states;  and  that  each  for 
itself,  by  its  own  voluntary  assent, 
entered  the  Union  with  the  view 
to  its  increased  security  against  all 
dangers,  domestic,  as  well  as  for- 
eign, and  the  more  perfect  and  se- 
cure enjoyment  of  its  advantages 
^natural,  political,  and  social. 

30 


"2.  Resolved,  That,  in  delegating 
a  portion  of  their  powers  to  be  ex- 
ercised by  the  Federal  Govern- 
ment, the  states  retained,  sever- 
ally, the  exclusive  and  sole  right 
over  their  own  domestic  institu- 
tions and  police,  to  the  full  extent  to 
which  those  powers  were  not  thus 
delegated,  and  are  alone  respon- 
sible for  them;  and  that  any  inter- 
meddling of  any  one  or  more  states, 
or  a  combination  of  their  citizens, 
with  the  domestic  institutions  and 
police  of  the  others,  on  any  ground, 
political,  moral  or  religious,  or  un- 
der any  pretext  whatever,  with  the 
view  to  their  alteration  or  subver- 
sion, is  not  warranted  by  the  Con- 
stitution, tending  to  endanger  the 
domestic  peace  and  tranquillity  of 
the  states  interfered  with,  subver- 
sive of  the  objects  for  which  the 
Constitution  was  formed,  and,  by 
necessary  consequence,  tending  to 
weaken  and  destroy  the  Union  it- 
self. 

"3.  Resolved,  That  this  govern- 
ment was  instituted  and  adopted 
by  the  several  states  of  this  Union 
as  a  common  agent,  in  order  to 
carry  into  effect  the  powers  which 
they  had  delegated  by  the  Consti- 
tution for  their  mutual  security 
and  prosjjei'ity,  and  that,  in  fulfil- 
ment of  this  high  and  sacred  trust, 
this  government  is  bound  so  to  ex- 
ercise its  powers  as  not  to  intei'- 
fere  with  the  stability  and  security 
of  the  domestic  institutions  of  the 
states  that  compose  the  Union; 
and  that  it  is  the  solemn  duty  of 
the  government  to  resist,  to  the 
extent  of  its  constitutional  power, 
all  attempts  by  one  portion  of  the 
Union  to  use  it  as  an  instrument 


CH.  I.J     NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.    §  15 

stitutional  history  of  the  United  States ;  the  ante-bellum 
period  from  1789  to  1861,  and  the  post-bellum  period  from 
1861  to  the  present  time.  The  dividing  line  between  these 
two  eras  is  the  Civil  War ;  the  removal  of  the  two  great 
elements  of  slavery  and  the  right  of  secession  from  con- 
stitutional discussion,  and  the  non-existence  of  those  two 
causes  of  difference  has  naturally  resulted  in  a  material  mod- 
ification of  the  views  of  many  who  had  adopted  the  most 
extreme  position  in  order  to  sustain  those  two  principles 
which  are  now  fortunately  only  elements  of  constitutional 
history  and  not  of  present  construction.^ 

§  15.  Marshall,  Story  and  Gray ;  Calhoun,  Taney  and 
Tucker. — During  both  of  these  periods  there  have  been  many 


to  attack  the  domestic  institutions 
of  another,  or  to  weaken  or  destroy 
such  institutions." 

The  remaining  resolutions  re- 
lated exclusively  to  the  relations 
of  the  Federal  Government  to  the 
institution  of  slavery  in  the  South- 
ern states. 

The  final  vote  upon  the  adoption 
of  these  resolutions  was  35  yeas 
and  9  nays. 

Massachusetts,  Vermont  and 
Rhode  Island  were  the  only  states 
that  voted  in  the  negative. 

These  extracts  are  sufficient  to 
show  the  basic  doctrine  of  the 
States'  Rights  School  which  has 
also  been  expressed  by  John  Ran- 
dolph Tucker,  whose  opinion  is 
quoted  at  length  in  the  text  of  sec- 
tion 16.  Fortunately  these  views 
have  been  confined  to  a  part  of  the 
people  of  a  part  of  the  States,  and 
the  broader  views  of  those  who  be- 
lieve that  the  United  States  is  a 
Nation  will  undoubtedly  prevail, 
with  the  result  that  the  United 
States  will  always  remain,  as  it 
has  been,  a  Nation  possessed  of 
national  and  sovereign  powers. 

§14. 

1  "  The  United  States  of  Amer- 


ica, from  the  Atlantic  to  the  Pa- 
cific, from  the  Canadian  lakes  to 
the  Mexican  border,  appear  des- 
tined to  remain  for  an  indefinite 
time  under  the  same  political  in- 
stitutions; and  there  is  no  evidence 
that  these  will  not  continue  to  be- 
long to  the  popular  type.  Of  these 
institutions,  the  most  important 
part  is  defined  by  the  Federal  Con- 
stitution. The  relative  importance, 
indeed,  of  the  Government  of  the 
United  States,  and  of  the  State 
Governments,  did  not  always  ap- 
pear to  be  as  clearly  settled  as  it 
appears  at  the  present  moment. 
There  was  a  time  at  which  fhe  au- 
thority of  the  several  States  might 
be  thought  to  be  gaining  at  tlie  ex- 
pense of  the  authority  of  the  Uni- 
ted States ;  but  the  War  of  Secession 
reversed  this  tendency,  and  the 
Federation  is  slowly  but  decidedly 
gaining  at  the  cost  of  the  States. 
Thus,  the  life  and  fortunes  of  the 
most  multitudinous  and  homogene- 
ous population  in  the  world  will, 
on  the  whole  and  in  tlie  main,  be 
shaped  by  the  Constitution  of  the 
United  States."  Popular  Govern- 
ment, Sir  Henry  Maine,  p.  197. 

31 


§  16  TREATY-IVIAKING  POWER  OF  THE  U.  S.  [CH.  I. 

advocates  of  extremely  limited,  and  of  extremely  unlimited, 
powers  in  the  Central  Government.  John  C.  Calhoun  and 
Chief  Justice  Taney  can  fairly  be  taken  as  exponents  of  the 
States'  Rights  School  of  the  ante-bellum  period,  while  John 
Eandolph  Tucker  occupies  the  same  position  in  the  post-bellum 
period ;  Chief  Justice  Marshall  and  Justice  Story,  before  the 
war,  and  Justices  Field,  Miller  and  Gray,  since  the  war,  are 
the  leading  spirits  of  the  broad  constructionists  during  their 
respective  periods  of  service  on  the  bench  of  the  Supreme 
Court  of  the  United  States.  Many  other  able  publicists, 
jurists  and  judges  have  arrayed  themselves  on  one  side  or 
the  other  of  these  great  questions  during  both  periods  of  our 
constitutional  history ;  those  who  have  been  named,  how- 
ever, have  expressed  the  views  of  the  schools  to  which  they 
have  respectively  belonged  so  thoroughly  and  completely, 
that  most  of  the  opinions  and  decisions  which  will  be  referred 
to  in  the  subsequent  pages  will  be  taken  from  their  writings 
and  opinions. 

§  16.  John  Randolph  Tucker's  views. — John  Randolph 
Tucker  of  Virginia  comes  of  a  family  which  has  produced 
a  long  line  of  strict  constructionists  and  of  eminent  statesmen 
of  the  States'  Rights  School ;  his  recently  published  book 
edited  after  his  death  by  his  talented  son,  Henry  St.  George 
Tucker,  is  the  latest  exposition  of  the  theories  of  that  fac- 
tion ;  it  is  largely  an  answer,  or  more  properly  speaking,  an 
attempted  answer  to  the  exposition  of  the  broa(ler  principles 
of  nationality  and  sovereignty  contained  in  Mr.  Justice 
Story's  Commentaries  on  the  Constitution.^  Mr.  Tucker,  in 
acknowledging  the  existence  of  the  two  opposite  schools  of 
construction  of  the  Constitution,  says  : 

"  On  the  nature  of  the  Constitution  of  the  United  States 
and  the  relations  of  the  States  to  the  Union,  there  are  two 
leading  schools  of  thought : 

"  First.  That  the  unit  of  sovereignty  is  the  State,  which  is 


§16. 

1  On  the  other  hand  Justice  Story, 
in  his  Commentaries,  had  directly 
refuted  many  of  the  statements 
contained  and  arguments  made  in 
Tucker's  Blackstone,  the  work  of 

32 


John  Randolph  Tucker's  grand- 
father, St.  George  Tucker;  the 
recently  published  book  of  John 
Eandolph  Tucker  might  be  con- 
sidered as  a  brief  in  reply  to  Judge 
Story,  if  not  as  a  brief  reply. 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.    §  18 

a  Body-politic ;  that  the  Constitution  of  the  United  States  is 
a  compact  between  these  sovereign  units  and  Bodies-politic, 
making  a  Federal  Union  between  the  States ;  that  the  or- 
ganic Federal  force  of  the  Federal  Union  is  the  Federal  Gov- 
ernment, to  which,  by  the  Constitution  of  the  United  States, 
the  States,  separately  and  in  combination,  have  delegated 
powers,  reserving  the  residuum  of  powers  not  so  delegated 
to  the  United  States,  nor  prohibited  to  the  States,  to  the 
State  governments,  or  to  the  people  of  the  States,  respec- 
tively. 

"  Second.  The  second  school  holds  that  the  Union  is  itself 
the  unit  of  sovereignty,  of  which  the  States  are  subordinate 
parts,  to  which  certain  powers  belong  under  the  Constitution 
of  the  United  States,  while  the  main  powers  belong  to  the 
National  Government. 

"  Under  the  first  view  the  Union  is  a  multiple  of  units ; 
under  the  second,  the  Union  is  a  unit  of  which  the  States 
are  fractions.  At  the  head  of  the  second  school,  Judge 
Story  is  jpi'iinus  inter  imres^  and  following  him  we  have,  in 
the  present  day.  Von  Hoist,  Burgess,  Hare,  Pomeroy,  and  a 
number  of  others."^ 

Mr.  Tucker's  views  as  to  the  extent  and  limitations  of  the 
treaty-making  power  of  the  United  States  found  official  ut- 
terance in  a  report  made  by  the  Judiciary  Committee  of  the 
House  of  Representatives,  of  which  he  was  Chairman  in 
1887,  and  to  which  more  extended  reference  will  be  made 
later.^ 

§  17.  Discussion  limited  to  the  Treaty-Making  Power 

It  is  not  the  purpose  of  this  volume  to  enter  into  a  general 
discussion  of  the  theories  of  the  delegated,  or  general,  powers 
of  the  Government  of  the  United  States,  except  so  far  as  they 
affect  the  treaty-making  power ;  in  this  respect,  it  seems  not 
only  possible  to  reconcile  the  two  conflicting  doctrines  of 
construction,  but  also  to  harmonize  them  in  sustaining  to  the 
fullest  extent  this  great  and  necessary  power  of  the  Federal 
or  National  Government,  whichever  it  mav  be  called. 

§  18.  Duality  of  Government  of  United   States ^The 


2  Tucker    on    the    Constitution, 
vol.  I.,  sec.  106,  p.  178. 

8  Cong.   Doc.   49th  Congress,  2d 


Session,  House  of  Rep.,  Report 
No.  4177  on  Trciity  with  Hawaiian 
Islands,  March  3,  1887. 


3  33 


§  19  TREATY-MAKING  POWER  OF  THE  U-  S.  [CH.  I. 

question  which  is  so  often  asked  whether  the  Government  of 
the  United  States  is  National  or  Federal  can  be  consistently 
answered  by  the  declaration  that  it  is  both.  While  the  two 
words  from  the  standpoint  of  the  lexicographer  may  be  ex- 
clusive of  each  other  as  to  certain  matters,  they  are  not  nec- 
essarily so  when  considered  as  to  the  different  capacities  of 
governmental  action  and  control  over  people  who  have  dele- 
gated different  portions  of  sovereignty  to  the  State  and 
Central  Governments  respectively.  In  fact,  those  separate 
phases  so  exist  that  the  diverse  nature  of  the  government  not 
only  necessarily  exists,  but  it  would  be  an  impossibility  for 
the  government  to  survive  without  its  existence.  Although 
this  duality  in  nature  of  the  Government  of  the  United 
States  in  its  Federal  and  National  capacities  has  existed  from 
its  very  inception,  it  had  to  be  thoroughly  understood  and 
appreciated,  not  only  in  theory  but  also  in  practice,  before 
this  question  was,  as  it  certainly  has  been,  settled  by  the  Su- 
preme Court  of  the  United  States,  which  has  finally,  and 
beyond  all  doubt,  decided  that  the  elements  of  nationality 
and  sovereignty  exist  as  to  some  matters,  while  the  limitations 
which  necessarily  attend  all  delegated  power  where  there  is 
any  residuum  reserved,  exist  in  regard  to  other  matters.^ 

§  19.  Extent  of  original  State  Sovereignty. — Whatever 
State  sovereignty  existed  at  the  time  of  the  adoption  of  the 
Constitution,  and  was  not  delegated  to  the  Central  Govern- 
ment, Avas  undoubtedly  reserved  to  the  States ;  such  reserva- 
tion, however,  must  necessarily  have  been  in  regard  to  those 
matters  over  which  State  sovereignty  had  been,  or  could  have 
been,  exercised ;  in  all  such  respects  this  reservation  of  power 
and  sovereignty  must  be  construed  as  broadly  as  possible  for 
the  benefit  of  the  States.  As  to  those  subjects,  however,  over 
which  it  was  neither  proper  nor  practical  for  an  individual 
State  to  exercise  any  control  or  sovereignty,  but  which  re- 
quired National  action  for  the  joint  or  equal  benefit  of  every 
State,  it  is  a  self-evident  proi>osition,  that,  as  no  power  or  sov- 
ereignty existed  in  regard  thereto  in  any  State,  it  was  impos- 
sible for  any  one  of  the  States  separately,  or  all  the  States  col- 


§18. 

1  United  States  vs.  Cruikshank,  U. 
S.   Sup.    Ct.    1875,   92    U.   S.   542, 

34 


Waite,  Ch.  J.,  and  also  see  cases 
cited  under  §  12,  ante,  and  §§  35-6, 
post. 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S. 


19 


lectively,  either  to  delegate  to  the  newly  formed  government, 
or  to  reserve  to  themselves,  elements  of  sovereignty  which 
none  of  them  possessed.^     For  the  same  reason  it  cannot  be 


§19. 

1 "  The  states  were  not  '  sover- 
eigns '  in  the  sense  contended  for 
by  some.  They  did  not  possess  the 
peculiar  features  of  sovereignty— 
they  could  not  make  war,  nor  al- 
liances, nor  treaties.  Considering 
them  as  political  beings  they  were 
dumb,  for  they  could  not  speak  to 
any  foreign  sovereign  whatever. 
They  were  deaf,  for  they  could  not 
hear  any  propositions  from  such 
sovereign.  They  had  not  even  the 
organs  of  defense  or  offense,  for 
they  could  not  of  themselves  raise 
troops,  nor  equip  vessels  for  war." 
(Mr.  King,  on  June  19,  1787,  in  the 
Philadelphia  convention,  Madison 
papers;  Elliot,  Deb.,  V.,  p.  212, 
and  see  §  179  of  chap.  VI.,  post.) 
"  Ml".  Ruffin  called  attention  in  the 
debates  of  the  peace  convention  at 
Washington,  February,  1861,  to  the 
fact  that  during  the  Revolutionary 
War  North  Carolina  had  laid  the 
foundation  of  a  fleet,  to  which 
Orth  of  Indiana  replied:  'There, 
then,  we  have  a  single  instance  of 
one  of  the  States  taking  a  step 
towards  sovereignty.'  None  of  the 
delegates  from  the  Southern  States 
could  adduce  another  instance." 
Chittenden,  Debates  of  the  Peace 
Convention,  p.  262.  See  also  Von 
Hoist,  vol.  I.,  chap.  1  p.  24,  where 
the  above  appears  as  a  footnote. 

The  complete  lack  on  the  part  of 
any  State  government  to  perform 
any  act  which  involves  foreign  re- 
lations is  illustrated  by  the  fact 
that  no  State  can  deliver  up  a  fugi- 
tive to  a  foreign  power  except  in 
pursuance  of  an  act  of  Congress. 
In  this  regard  Spear  says  (p.  18): 


"  The  Constitution,  in  its  first 
article,  and  in  the  first  clause  of  the 
tenth  section,  declares  that  '  no 
State  shall  enter  into  any  treaty, 
alliance  or  confederation;'  and,  in 
a  subsequent  clause  of  the  same 
section,  it  declares  that  no  State 
shall,  without  the  consent  of  Con- 
gress, '  enter  into  any  agreement 
or  compact  with  another  State,  or 
with  a  foreign  power.' 

"  The  first  of  these  prohibitions  is 
absolute  and  unqualified,  and  com- 
pletely excludes  all  power  in  the 
States  to  make  treaties  with  for- 
eign nations  on  any  subject  what- 
ever. The  States,  of  course,  can- 
not make  extradition  treaties 
securing  the  right  to  demand  fugi- 
tive criminals  from  foreign  Govern- 
ments, and  contracting  the  obliga- 
tion to  deliver  them  up  to  such 
Governments. 

"  The  second  prohibition  forbids 
the  States,  without  the  consent  of 
Congress,  to  enter  into  any  agree- 
ment or  compact  '  with  a  foreign 
power.'  The  'agreement  or  com- 
pact,' as  here  referred  to,  is  not 
identical  with  a  formal  treaty, 
which  is  absolutely  forbidden  in  a 
previous  clause  of  the  section.  The 
words  mean  any  arrangement,  ne- 
gotiation, agreement  or  compact 
with  a  foreign  power,  though  it 
should  not  amount  to  a  treaty  in 
the  strict  sense;  and  no  State,  im- 
less  with  the  prior  consent  of  Con- 
gress, can  enter  into  any  arrange- 
ment, negotiation,  agreement,  or 
compact  on  any  subject  with  an- 
other State  or  witli  a  foreign  power. 

"  The  plain  design  of  both  prohi- 
bitions   is  to  exclude  the  States 

35 


§19 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  I. 


said  that  the  people,  in  ratifying  the  Constitution, reserved 
any  portion  of  sovereignty  in  regard  to  such  matters  to  the 
States  rather  than  to  the  Central  Government. 


from  all  official  intercourse  with 
foreign  nations,  and  leave  all  such 
intercourse  to  be  exclusively  man- 
aged and  conducted  by  the  General 
Government.  They  cannot  make 
a  treaty,  and  they  cannot,  except 
with  the  consent  of  Congress,  en- 
ter into  any  agreement  or  compact, 
either  with  each  other  or  with  a 
foreign  power,  even  though  it 
should  not  be  a  treaty  in  the  tech- 
nical sense. 

"It  follows  that  no  State  can, 
without  such  consent,  agree  in  a 
specific  case  to  deliver  up  a  fugi- 
tive criminal  to  a  foreign  Govern- 
ment; and  if  it  has  no  power  to 
make  such  an  agreement,  then  it 
has  no  power  to  do  the  thing  it- 
self. No  state  can  do  what  it  has 
no  power  to  agree  to  do.  The 
delivery  of  a  fugitive  criminal  to  a 
foreign  Government,  even  without 
a  regular  and  formal  agreement 
beforehand,  would  be  essentially 
the  same  thing  as  doing  it  with 
such  an  agreement.  It  would,  in 
that  case,  be  an  affirmative  re- 
sponse to  the  request  or  demand  of 
the  foreign  Government,  and  an 
agreement  to  do  the  thing  re- 
quested or  demanded,  accompanied 
with  the  actual  doing  of  it,  and 
would  be  just  the  thing  in  kind 
which  it  is  the  purpose  of  the  Con- 
stitution to  forbid  and  prevent. 

"Moreover,  the  delivery  of  a  fugi- 
tive criminal  to  a  foreign  Govern- 
ment by  a  State,  even  with  the  con- 
sent of  Congress,  supposing  this 
consent  to  be  obtained,  would  not 
be  admissible,  since  the  power  to 
do  so,  as  already  shown,  would  be 
repugnant  to  a  similar  power  vested 

36 


in  the  General  Government.  The 
agreement  or  compact  with  a  for- 
eign power  which,  with  the  consent 
of  Congress,  is  admissible,  is  evi- 
dently not  of  the  kind  that  em- 
braces the  extradition  of  fugitive 
criminals,  since  this  is  provided  for 
in  the  powers  of  the  General  Gov- 
ernment, and  since  it  is  a  part  of 
the  foreign  intercourse  of  the  Uni- 
ted States  intended  to  be  exclu- 
sively confided  to  that  Government, 
and  especially  to  the  President  in 
the  exercise  of  the  treaty-making 
power.  The  fraraers  of  the  Con- 
stitution evidentlj'  did  not  mean 
that  Congress,  by  simply  giving  its 
consent,  should  be  able  to  endow  a 
State  with  any  such  power." 

In  speaking  of  the  case  of  Holmes 
vs.  Jennison,  Spear  says  on  p.  21 : 

"  This  decision  (of  the  Supreme 
Court  of  the  State  of  Vermont)  af- 
firmed and  sustained  the  power  of 
the  Governor  of  Vermont  to  issue 
the  warrant  for  the  arrest,  detention 
and  delivery  of  Holmes  to  the  Cana- 
dian authorities  as  a  fugitive  crimi- 
nal, even  without  any  express  stat- 
ute of  the  State  providing  therefor. 
It  assumed  that  the  State,  through 
its  executive  authority,  could  make 
such  an  arrest  and  delivery,  and 
that,  too,  notwithstanding  the 
President  of  the  United  States  for 
want  of  power  had  declined  to  act. 
The  Governor  of  Vermont,  in  a 
matter  of  foreign  intercourse,  un- 
dertook to  do  what  the  President 
decided  that  he  had  no  power  to  do ; 
and  the  Supreme  Court  of  the  State 
affirmed  the  legality  of  his  action. 
"The  decision  being  rendered  by 
the  highest  court  of  the  State  of  Ver- 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.     §  20 


§  20.  Original   nationality  and  sovereignty  of  Central 

Government. — In  respect,  therefore,  to  matters  wholly  with- 


mont,  Holmes,  uuder  the  twenty- 
fifth  section  of  the  Judiciary  Act 
of  1789  (1  U.  S.  Stat,  at  Large,  73), 
sued  out  a  writ  of  error  from  the 
Supreme  Court  of  the  United 
States;  and  tliis  court,  being  di- 
vided in  oi^iuiou,  was  not  able,  as  a 
court,  to  render  any  other  judg- 
ment than  that  of  dismissing  the 
case  for  want  of  jurisdiction. 
Holmes  vs.  Jennison,  14  Pet.  540. 
There  was,  consequently,  no  posi- 
tive decision  by  the  court  in  regard 
to  the  specific  question  involved  in 
the  action  of  Governor  Jennison, 
and  decided  by  the  Supreme  Court 
of  Vermont."  Spear  on  the  Law 
of  Extradition,  pp.  18-21. 

That  a  State  has  no  power  to  de- 
liver to  a  foreign  government,  was, 
however,  decided  by  the  Court  of 
Appeals  of  the  State  of  New  York 
in  the  case  of  The  People  ex  rel. 
Barloio  vs.  Curtis,  50  N.  Y.  321. 
The  syllabus  in  that  case  says: 

"  By  the  Constitution  of  the  Uni- 
ted States  the  whole  subject  of 
foreign  intercourse  is  committed 
to  the  Federal  Government,  and 
upon  all  questions  relating  thereto 
it  alone  can  speak  and  act.  It  has 
the  exclusive  power  to  regulate, 
provide  for  and  control  the  sur- 
render of  fugitives  from  justice 
fi'om  foreign  countries.  The  pro- 
vision, therefore,  of  the  Revised 
Statutes  (1  R.  S.  164,  §§  8-11,  8th 
ed.  p.  497)  providing  for  such  sur- 
render, is  unconstitutional,  and  a 
warrant  issued  by  the  governor  in 
pursuance  thereof  is  void."  In 
this  case,  on  the  request  of  the  Min- 
ister of  Belgium,  one  Vogt  charged 
with  the  crimes  of  murder,  robbery 
and  arson,  was  about  to  be  del  ivered 
to  the  Belgian  authorities,  to  the 


end  that  he  might  be  taken  to 
Brussels  and  there  tried  for  his 
crimes.  This  was  in  1872;  there 
was  no  extradition  treaty  between 
the  United  States  aud  Belgium  at 
that  time,  the  President  of  the  Uni- 
ted States  therefore  had  no  author- 
ity to  deliver  up  fugitive  criminals 
to  the  Belgian  government. 

The  Governor  of  New  York  acted 
under  a  statute,  originally  enacted 
in  1822,  which  provided  that  "the 
Governor  may,  in  his  discretion, 
deliver  over  to  justice  any  person 
found  within  the  State,  who  shall 
be  charged  with  liaving  committed, 
without  the  jurisdiction  of  the 
United  States,  any  crime  except 
treason,  which  by  the  laws  of  this 
State,  if  committed  therein,  is  pun- 
ishable by  death  or  by  imprison- 
ment in  the  State  prison."  1  R. 
S.  of  New  Y^ork,  164.  There  is  no 
doubt  that  this  statute  of  the  State 
of  New  York  authorized  the  act  of 
the  Governor  in  ordering  the  arrest 
and  delivery  of  Vogt.  Tiie  only 
question,  therefore,  was  whether 
the  statute  itself  was  consistent 
with  the  Constitution  of  the  United 
States. 

Vogt  sued  out  a  writ  of  habeas 
corpus,  returnable  before  Judge 
Curtis,  of  the  Superior  Court  of  the 
city  of  New  Y^ork,  who  discharged 
Vogt  on  the  ground  that  the  stat- 
ute, and  tlie  warrant  of  arrest  under 
it,  were  in  conflict  with  the  Consti- 
tution of  the  United  States.  This 
proceeding  was  reviewed  and  after- 
wards affirmed  by  the  General 
Term  of  the  Supreme  Court,  also 
by  the  New  York  Court  of  Appeals. 

See  views  of  Justice  Samuel  F. 
Miller  on  State  Sovereignty,  quoted 
in  section  29  of  this  chapter  posi. 

37 


^  21  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  I. 

out  the  jurisdiction  of  any  State  the  National  Government 
was  created  by  the  original  joinder  of  the  colonies,  at  a  time 
Avhen  unity  of  action  was  recognized  as  a  prerequisite  for  in- 
depentlence,  and  the  existence  of  its  nationality  dates  from  a 
period  prior  to  the  adoption  of  the  Articles  of  Confederation. 
That  National  Government,  the  existence  of  which  continued 
under  those  articles,  and  still  continues  under  the  Constitu- 
tion, is  necessarily  not  one  of  exclusively  delegated  powers ; 
it  undoubtedly  possesses  certain  delegated  powers,  the  source 
of  which  can  be  found  in,  and  must  necessarily  be  limited 
by,  those  great  instruments  which  have,  and  always  will, 
form  such  an  important  part  of  our  organic  law ;  it  also, 
however,  originally  possessed,  as  it  still  must  possess,  com- 
plete nationality  and  sovereignty  in  man}''  other  respects  in 
the  same  manner  as  they  are  possessed  and  can  be  exercised 
by  other  sovereign  powers  of  the  world.  It  necessarily  fol- 
lows that  this  proposition  relates  with  ev^en  greater  force  to 
the  treaty-making  power,  and  to  the  establishment  and  con- 
duct of  relations  between  this  country  and  every  part  there- 
of with  foreign  countries  than  it  does  to  almost  any  other 
existing  governmental  powers,  because  in  no  other  respect 
is  it  so  generally  admitted,  that  the  government  of  the  United 
States  is  national  in  its  character  and  scope. 

The  Constitution  recognizes  the  distinction  between  the 
Federal  and  National  sources  of  power ;  this  is  evidenced  by 
the  Tenth  Amendment,  which  declares  that  the  reservation 
of  undelegated  powers  is  "  to  the  States,  and  to  the  people." 
The  people  in  this  respect  are  referred  to,  not  onl}^  as  in- 
habitants or  citizens  of  the  States,  but  also  as  the  people  of 
the  entire  country  as  a  National  unit. 

§  21.  Residuum  of  Power.— This  residuum  of  delegated 
power  contains  in  itself  a  complete  exposition  of  the  sover- 
eignty of  the  Central  Government  in  national  affairs. 

It  will  be  again  referred  to  in  the  final  chapter  of  this 
volume,  but  it  requires  a  brief  reference  at  this  point  also. 
As  to  matters  affecting  States  in  their  individual  capacities, 
all  delegated  power,  except  so  far  as  it  was  reserved  in  the 
people  themselves,  vests  in  the  State  in  the  absence  of  specific 
delegation  to  the  Central  Government ;  as  the  power  of  the 
Central  Government  diminishes  that  of  the  State  increases, 
38 


CH.  I.]    NATIONAX.ITY  AKD  SOVEREIGNTY  OF  THE  U.  S.     §  22 

and  vice  versa  y  but  full  and  complete  sovereignty  so  far  as 
the  people  have  parted  with  it  exists  between  the  two  gov- 
ernments, and  there  is  never  any  loss  of  the  whole  amount 
of  power  so  delegated.  When,  however,  no  State  can  possi- 
bly exert  control  over  a  matter,  or  exercise  any  jurisdiction 
owing  to  the  nature  of  the  subject-matter  or  to  constitu- 
tional limitations,  the  entire  power  delegated  must  neces- 
sarily remain  in,  and  be  exercised  solely  by,  the  Central  Gov- 
ernment ;  hence  it  can,  as  it  often  has  done,  and  often  must 
do,  exercise  plenary  power  in  regard  to  those  matters,  and 
in  so  doing  it  has  been  held  that  its  power  is  unrestrained, 
except  so  far  as  it  must  be  exercised  in  consonance  with  the 
fundamental  principles  which  are  intended  as  general  securi- 
ties for  public  liberty,  and  subject  only  to  those  natural  limi- 
tations which  are  imposed  upon  all  sovereign  powers,  no 
matter  how  absolute  they  may  be,  of  equity,  justice  and 
truth.i 

§  22.  Powers  reserved  to  States  relate  to  internal  af- 
fairs.— It  must  also  be  remembered  that  the  limitations 
upon  the  Central  Government  are  those  which  reserve  to 
the  States  the  control  of  matters  relating  to  their  internal 
affairs  ;  there  are  no  express  or  implied  limitations  upon  those 
matters  which  are  within  the  purview  of  the  national  govern- 
ment. In  fact  while  the  treaty-making  and  some  other 
powers  are  delegated  to  the  Central  Government  in  general 
terms,  and  without  any  specified  limitations  whatever,  the 
Constitution  expressly  provides  that  "  no  State  shall  enter 
into  any  treaty,  alliance  or  confederation ;  ...  or,  with- 
out the  consent  of  Congress,  enter  into  any  agreement  or  com- 
pact with  another  State  or  with  a  foreign  power,"  ^  thus  not 
only  placing  the  power  generally  in  the  Central  Government, 
but  absolutely  prohibiting  any  State  from  acquiring  any  addi- 
tional territory,  or  performing  any  functions  of  sovereignty 
beyond  its  own  boundaries,  except  through  the  medium  of 
the  Central  Government;  unless  that  government  therefore 
is  completely  vested  with  the  fullest  powers  in  these  re- 
spects, some  portion  of  delegated  sovereignty  would  neces- 


§21. 

1  See  cases  cited  under  §§  36-40, 
post. 


§22. 

1  U.  S.  Const.  Art.  I,  §  10. 


39 


S  22 


TREAT Y-JIAKING  POWER  OF  THE  U.  S. 


[CH. 


sarily  be  lost,  because  no  part  of  it  would,  for  it  could  not, 
under  the  prohibitory^  clauses  revert  to  the  States  individu- 
ally or  collectively ;  under  such  circumstances  this  country 
would  have  to  stand  before  the  world  in  the  mortifying  posi- 
tion of  not  having  any  government,  State  or  National,  able  to 
perform  tlie  most  necessary  and  far-reaching  of  all  govern- 
mental functions;  the  one  which  all  other,  and  fully  sover- 
eign, powers  are  constantly  performing,  and  in  the  absence 
of  which,  foreign  relations  could  not  be  maintained  with  any 
dignity  or  satisfactory  results  whatever,  either  for  the  Cen- 
tral Government  or  for  the  States  themselves.^ 


2  In  an  opiuion  delivered  to  Sec- 
retary of  State  Marcy,  on  Febru- 
ary 26, 1857,  in  regard  to  the  right  of 
the  United  States  to  reguhite  by 
treaty  the  succession  of  property  in 
States  of  the  Union  as  to  citizens 
of  auotlier  Country,  Attorney  Gen- 
eral Caleb  Gushing  says:  "  Suppos- 
ing engagement  of  this  nature  to  ex- 
ceed the  Constitutional  power  of 
the  Federal  Government,  that  with 
Prussia  does  not  the  less  exist:  it  is 
for  the  consideration  of  reciprocal 
benefits  actually  received  by  us; 
and,  if  it  be  unconstitutional,  it  will 
remain  for  us, — after  pleading  mea 
culpa,  mea  culpa  gravissima,  and 
begging  pardon  for  entering  into 
stipulations  which  we  had  no  power 
to  make, — then  it  will  only  remain 
for  us  to  indemnify  Prussia  for  our 
past  shortcomings,  and  to  negoti- 
ate a  release  from  further  obliga- 
tion, 

"  But  can  it  be,  is  there  any  good 
reason  to  think,  that  the  Federal 
Government  has  no  power  to  make 
such  a  stipulation?  It  may  be  in- 
convenient, because  involving  con- 
flict with,  or  abrogation  of,  the 
laws  of  one  or  more  of  the  States. 
Granted:  but  inconvenience  is  not 
unconstitutionality:  question  of 
which  depends  on  the  text  of  the 
Federal  Constitution. 

40 


"  The  power,  which  the  Constitu- 
tion bestows  on  the  President,  with 
advice  and  consent  of  the  Senate, 
to  make  treaties,  is  not  only  gen- 
eral in  terms  and  without  any  ex- 
press limitation,  but  it  is  accom- 
lianied  with  absolute  prohibition 
of  exercise  of  treaty-power  by  the 
States.  That  is,  in  the  matter  of 
foreign  negotiation,  the  States  have 
conferred  the  whole  of  their  power, 
in  other  words,  all  the  treaty- 
powers  of  sovereignty,  on  the  Uni- 
ted States.  Thus,  in  the  present 
case,  if  the  power  of  negotiation 
be  not  in  the  United  States,  then 
it  exists  nowhere,  and  one  great 
field  of  international  relation,  of 
negotiation,  and  of  ordinary  public 
and  private  interest,  is  closed  up, 
as  well  against  the  United  States  as 
each  and  every  one  of  the  States. 
That  is  not  a  supposition  to  be  ac- 
cepted, unless  it  be  forced  upon  us 
by  considerations  of  overpowering 
cogency.  Nay,  it  involves  political 
impossibility.  For,  if  one  of  the 
proper  functions  of  sovereignty  be 
thus  utterly  lost  to  us,  then  the 
people  of  the  United  States  are  but 
incompletely  sovereign, — not  sover- 
eign,— nor  in  coequality  of  right 
with  other  admitted  sovereignties 
of  Europe  and  America." 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.    §  23 

§23.  Proposition  supported  by  eminent  jurists. — This 
broad  proposition  may  sound  paradoxical,  especially  when  it 
is  accompanied  by  the  statement  that  we  are  a  constitu- 
tionally governed  country  ;  it  is  founded,  however,  upon 
opinions  and  decisions  expressed  by  the  ablest  jurists  and 
authorities  upon  constitutional  law  and  construction  which 
this  country  has  ever  produced,  and  who  have  been  able  to 
extend  their  vision  beyond  the  bounds  of  a  mere  league  of 
confederated  semi-sovereignties,  or  states  banded  together 
for  the  sellish  protection  of  individual  interests,  to  the  more 
expansive  view  of  a  great  nation,  exercising  through  a  Cen- 
tral Government  national  functions,  not  only  for  internal 
protection  and  development,  but  far  beyond  the  original 
limits,  for  the  benefit  of  mankind  and  civilization. 

Those  who  have  recently  had  the  temerity  to  affirm,  for 
example,  as  a  legal  proposition,  that  our  government  has  in 
any  way  exceeded,  or  is  exceeding,  its  powers  either  in  ac- 
quiring or  in  governing,  our  new  possessions,  would  do  well  to 
examine  the  opinions  and  decisions  of  the  Supreme  Court, 
as  they  have  been  declared  by  Chief  Justice  Marshall  and 
Justices  Story,  Curtis,  Field,  Bradley,  Harlan  and  Gray^ 
and  other  former  and  present  members  of  that  great  tribunal, 
as  well  as  the  utterances  of  such  statesmen  as  Caleb  Gushing, 
Daniel  Webster,  Charles  Sumner,  William  H.  Seward  and 
others  noted  no  less  for  their  prudence  and  conservatism 
than  for  their  legal  ability  and  political  acumen  ;  after  weigh- 
ing the  expressed  opinions  of  those  eminent  jurists  and  masters 
of  political  science,  they  may  materially  modify  their  own 
opinions  ;  their  doubts  may  be  dispelled,  and  they  may  recog- 
nize that  there  has  been  no  excess  of  power  exerted  in  the 
recent  actions  of  the  Government,  so  far  as  treaty-making  is 
concerned  ;^  in  every  instance  of  territorial  acquisition  and  the 
subsequent  government  of  the  acquired  territory,  the  National 
Government  has  exercised  powers  Avhich  are  only  compati- 


Opinions  of  Attorneys  General, 
vol.  VIII,  411,  p.  415. 

§23. 

1  For  references  to  utterances  of 
these  jurists  consult  index  at  end 
of  volume. 


2  For  decisions  of  the  court  and 
the  questions  involved  in  the  suits 
pending  before  the  Supreme  Court 
see  §§  Gla-61/i,  post ;  see  also  §  101, 
chapter  III,  posf. 

41 


§25  TREATY-MAKINCr  PUWEi:  OF  THE  d".  S.  [CH.  1. 

ble  with  the  inherent  possession  of  complete  sovereignty,  and 
wholly  incompatible  with  the  delegated  possession  of  incom- 
plete sovereignt}^,  and  the  Supreme  Court  has  uniformly  sus- 
tained the  action  of  the  Government  whenever  it  has  been 
based  upon  treaty  stipulations,  not  only  as  to  the  treaty  itself, 
but  also  as  to  the  legislation  subsequently  enacted  in  pursu- 
ance thereof. 

§  2i.  National  Unity  expressed  in  preamble  of  Constitu- 
tion.— This  idea  of  national  unity  is  also  expressed  in  the 
preamble  of  the  Constitution,  which  enumerates  amongst  the 
actuating  motives  for  its  adoption,  provision  for  the  common 
defence,  promotion  of  the  general  welfare  and  security  of  the 
blessings  of  liberty  for  the  people  of  the  United  States,  re- 
ferring unquestionably  to  the  people  at  large  in  their  National 
capacity.  It  must  also  be  remembered  that  one  of  the  great- 
est discussions  in  the  Federal  Convention  was  on  the  question 
whether  the  Constitution  should  be  submitted  for  ratification 
to  the  various  State  legislatures,  or  to  the  people  themselves, 
and  that  the  latter  course  was  adopted  after  an  able  disserta- 
tion upon  the  subject  bv  Mr.  Madison,  the  details  of  which  are 
referred  to  at  greater  length  in  the  subsequent  chapter  of 
this  volume  which  is  devoted  to  the  proceedings  of  the  Con- 
stitutional Convention  of  1787.^ 

§  25.  Ratification  of  Amendments  by  States  result  of  del- 
egation by  People. — The  reason  why  amendments  to  the 
Constitution  can  now  be  ratified  by  the  legislative  bodies  of 
the  States,  and  not  necessarily  by  the  people  either  directly, 
or  through  conventions  specially  called  for  the  purpose,  is 
not  because  the  States,  as  such,  inherently  possess  any  power 
or  sovereignty  to  amend  the  Constitution  of  the  Union,  but 
because  the  people  themselves,  by  a  provision  in  the  Consti- 
tution, clothed  the  state  legislatures  with  the  power  of  ratify- 
ing amendments  whenever  they  were  proposed  by  a  two 
thirds  vote  of  both  houses  of  Congress,  provided  the  legis- 
latures of  three  fourths  of  the  States  accepted  them;  the 
people  thus  constitute  the  legislatures  of  the  several  States 
their  agents,  subject  to  the  prescribed  limitations  for  the  pur- 
pose of  ratifying  such  Amendments,^ 

§  24.  I     §  25. 

^  See  §  195  chapter  Vlposi.  1     i"The  Congress,  whenever  two 

42 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.     §  26 

§  26.  Supremacy  of  General  Goverument  as  to  objects 

within  its  domain.  —  "  The  general  government,"  said  Chief 
Justice  Marshall,  "  though  limited  as  to  its  objects  is  supreme 
with  respect  to  those  objects,  and  this  principle  is  a  part  of 
the  Constitution.'"  ^     lie  also  asserted  that  no  rule  of  narrovr 


thirds  of  both  Houses  shall  deem 
it  necessary,  shall  propose  Amend- 
ments to  this  Constitution,  or,  on 
the  Application  of  the  Legislatures 
of  two  thirds  of  the  several  States, 
shall  call  a  Convention  for  propos- 
ing Amendments,  which,  in  eitlier 
Case,  shall  be  valid  to  all  Intents 
and  Purposes,  as  Part  of  this  Con- 
stitution, when  ratified  by  the 
Legislatures  of  three  fourths  of 
the  several  States,  or  by  Conven- 
tions in  three  fourths  thereof  as 
the  one  or  the  other  Mode  of  Ratifi- 
cation may  be  proposed  by  the  Con- 
gress; Provided  that  no  Amend- 
ment v/hich  may  be  made  prior  to 
the  Year  One  thousand  eight  hun- 
dred and  eight  shall  in  any  Manner 
affect  the  first  and  fourth  Clauses 
in  the  Ninth  Section  of  the  first 
Article;  and  that  no  State,  with- 
out its  Consent,  shall  be  deprived 
of  its  equal  suffrage  in  the  Senate." 

Article  V.  Constitution  of  United 
States.  (The  first  and.  fourth  clauses 
of  the  Ninth  Section  of  Article  One, 
relating  to  the  migration  and  impor- 
tation of,  and  taxation  on,  slaves). 

§26. 

i"The  American  States,  as  well 
as  the  American  people,  have  be- 
lieved a  close  and  firm  Union  to  be 
essential  to  their  liberty  and  to 
their  happiness.  They  have  been 
taught  by  experience,  that  this 
Union  cannot  exist  without  a  gov- 
ernment for  the  whole;  and  they 
have  been  taught  by  the  same  ex- 
perience that  this  government 
would  be  a  mere  shadow,  that  must 
disappoint  all  their  hopes,  unless 


invested  with  large  portions  of  that 
sovereignty  which  belongs  to  in- 
dependent States.  Under  the  in- 
fluence of  this  opinion,  and  thus 
instructed  by  experience,  the 
American  people,  in  the  conven- 
tions of  their  respective  States, 
adopted  the  present  constitution. 

"  If  it  could  be  doubted,  whether 
from  its  nature,  it  were  not  su- 
preme in  all  cases  where  it  is  em- 
powered to  act,  that  doubt  would 
be  removed  by  the  declaration, 
that  '  this  constitution,  and  the 
laws  of  the  United  States,  which 
shall  be  made  in  pursuance  thereof, 
and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the 
supreme  law  of  the  land;  and  the 
judges  in  every  State  shall  be  bound 
thereby;  anything  in  the  constitu- 
tion or  laws  of  any  State  to  the 
contrary  notwithstanding.' 

"  This  is  the  authoritative  lan- 
guage of  the  American  people; 
and,  if  gentlemen  please,  of  the 
American  States.  It  marks,  with 
lines  too  strong  to  be  mistaken, 
the  characteristic  distinction  be- 
tween the  government  of  the  Union, 
and  those  of  the  States.  The  gen- 
eral government,  though  limited  as 
to  its  objects,  is  suin'eme  with  re- 
spect to  those  objects.  This  princi- 
ple is  a  part  of  the  constitution; 
and  if  there  be  any  who  deny  its 
necessity,  none  can  deny  its  au- 
thority. 

"To  this  supreme  government 
ample  powei's  are  confided;  and  if 
it  were  possible  to  doubt  the  great 

43 


§26 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  I. 


or  strict  construction  would  be  adopted  as  to  the  power  of 
the  Central  Government ;  when  once  the  nail  was  found  on 
which  to  hang  the  authority  to  act,  he  declared,  that  the  nail 
is  strong  enough  to  hold  any  weight  that  could  be  suspended 
therefrom.^ 

The  rule  of  supreme  power,  as  laid  down  by  the  eminent 
Chief  Justice,  has  been  expanded  rather  than  contracted  by 
subsequent  decisions  of  the  Supreme  Court,  which  has  always 
upheld  the  sovereignty  and  nationality  of  our  government. 


purposes  for  which  they  were  so 
confided,  the  people  of  the  United 
States  have  declared,  that  they  are 
given  '  in  order  to  form  a  more  per- 
fect union,  estahlish  justice,  ensure 
dorhestic  tranquillity,  provide  for 
the  common  defense,  promote  the 
general  welfare,  and  secure  the 
blessings  of  liberty  to  themselves 
and  their  posterity.' 

"  With  the  ample  powers  con- 
fided to  this  supreme  government, 
for  these  interesting  purposes,  are 
connected  many  express  and  im- 
portant limitations  on  the  sov- 
ereignty of  the  States,  which  are 
made  for  the  same  purposes.  The 
powers  of  the  Union,  on  the  great 
subjects  of  war,  peace,  and  com- 
merce, and  on  many  others,  are  in 
themselves  limitations  of  the  sov- 
ereignty of  the  States;  but  in  ad- 
dition to  these,  the  sovereignty  of 
the  States  is  surrendered  in  many 
instances  where  the  surrender  can 
only  operate  to  the  benefit  of  the 
people,  and  where,  perhaps,  no 
other  power  is  conferred  on  Con- 
gress than  a  conservative  power 
to  maintain  the  principles  estab- 
lished in  the  constitution.  The 
maintenance  of  these  principles  in 
their  purity,  is  certainly  among 
the  great  duties  of  the  government. 
One  of  the  instruments  by  which 
this  duty  may  be  peaceably  per- 
formed, is  the  judicial  department. 

44 


It  is  authorized  to  decide  all  cases 
of  every  description,  arising  under 
the  constitution  or  laws  of  the 
United  States."  Cohens  vs.  Vn- 
ginia,  U.  S.  Sup.  Ct.  1821,  6 
Wheaton,  264,  p.  380,  Mar- 
shall, Ch.  J. 

2 "This  instrument  (the  Consti- 
tution) contains  an  enumeration  of 
powers  expressly  granted  by  the 
people  to  their  government.  It  has 
been  said,  that  these  powers  ought 
to  be  construed  strictly.  But  why 
ought  they  to  be  so  construed  ?  Is 
there  one  sentence  in  the  constitu 
tion  which  gives  countenance  to 
this  rule  ?  In  the  last  of  the  enu- 
merated powers,  that  which  grants, 
expressly,  the  means  for  carrying 
all  others  into  execution.  Congress 
is  authorized  '  to  make  all  laws 
which  shall  be  necessary  and 
proper '  for  the  purpose.  But  this 
limitation  on  the  means  which  may 
be  used,  is  not  extended  to  the 
powers  which  are  conferred,  nor  is 
there  one  sentence  in  the  constitu- 
tion, which  has  been  pointed  out 
by  the  gentlemen  of  the  bar,  or 
which  we  have  been  able  to  discern, 
that  prescribes  this  rule.  We  do 
not,  tlierefore,  think  ourselves  justi- 
fied in  adopting  it."  Gibbons  vs. 
Ogden,  U.  S.  Sup.  Court  1824,  9, 
Wheaton,  1,  p.  187,  Marshall, 
Ch.  J. 


CH.  I.]    NATIONALITY  AND  vSOVEREIGNTY  OF  THE  U.  S.     §  27 

§  27.  Meaning  of  "  The  People  of  the  United  States."— 

These  words,  which  occur  in  the  preamble  of  the  Constitu- 
tion, have  been  held  by  Calhoun,  Tucker  and  other  upholders 
of  States'  rights  and  the  theory  of  a  collection  of  State  units 
instead  of  a  single  national  unit,  as  meaning  the  people  of 
the  different  States,  and  not  the  people  of  the  United  States 
as  an  entirety. 

On  the  other  hand,  those  who  believe  in  the  nationality 
of  our  Government  maintain  that,  although  the  Constitu- 
tion was  adopted  in  separate  State  conventions,  the  people 
necessarily  adopted  such  method  as  the  only  possible  one 
under  which  they  could  act  at  that  time. 

The  theory  of  the  nationalists  is  supported  by  the  fact  that 
the  State  legislatures  had  no  power  to  accede  to  a  confedera- 
tion, or  to  a  national  government,  except  by  the  consent  of 
the  people  themselves,  and  that  in  suoh  respect  the  action 
of  the  people  was  superior  to  the  State  governments. 

Chief  Justice  Marshall,  Mr.  Justice  Story  and  others  have 
discussed  this  question  in  their  opinions,  and  commentaries 
upon  the  Constitution,  and  some  of  their  views  are  collated 
in  the  footnote  to  this  section.  Chief  Justice  Marshall  de- 
clared in  the  opinion  quoted  in  the  note  that  the  people  acted 
upon  the  Constitution  in  the  only  manner  in  which  they  could 
safely,  effectively  and  wisely  act  upon  such  a  subject,  to 
wit :  b}-^  assembling  in  convention.  Continuing  he  declared 
that  while  no  political  dreamer  Avas  ever  wild  enough  to 
think  of  breaking  down  the  lines  which  separated  the  States, 
or  of  compounding  the  American  people  into  one  common 
mass,  the  measures  which  were  adoptecl  in  the  separate  State 
conventions  did  not  on  that  account  cease  to  be  the  measures 
of  the  people  themselves,  or  become  the  measures  of  the 
State  governments.  In  fact,  the  Chief  Justice  said,  that  the 
Government  of  the  United  States  proceeded  directly  from 
the  people,  was  ordained  and  established  in  the  name  of  the 
people  for  the  purposes  stated  in  the  preamble,  and  that  the 
assent  of  the  States  in  their  sovereign  capacity  was  implied 
in  calling  the  conventions  and  submitting  the  instrument  to 
the  people,  but,  he  declared,  "  The  people  were  at  perfect 
liberty  to  accept  or  reject  it ;  their  act  was  final ; "  it  did  not 
require  the  affirmance  and  could  not  be  negatived  bv  the 

45 


§  27  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  I. 

States,  and  the  Constitution  as  thus  adopted,  was  a  complete 
obligation  and  bound  the  State  sovereignties.^ 

§27. 

1  VIEWS  OF  MARSHALL   AND  STORY  AS  EXPRESSED  BY  GEORGE    TICKNOR 

CURTIS. 

"  When  we  turn  to  the  views  of  the  nature  of  the  Constitution  that 
have  always  been  held  and  acted  upon  by  the  Supreme  Court  of  the 
United  States,  it  becomes  at  once  apparent  that  they  have  admitted  of 
no  place  for  the  doctrine  which  is  implied  in  the  idea  of  state  resistance, 
or  organized  resistance  of  any  kind.  Beginning  with  the  earliest  judi- 
cial interpretations  of  the  Constitution,  and  coming  down  to  the  latest, 
we  shall  find  that  they  have  been  viniform  and  consistent. 

"  When  the  Supreme  Court  was  composed  of  Marshall  as  chief  justice, 
Bushrod  Washington,  Story,  and  their  associates,  it  became  necessary 
for  them  to  speak  positively  concerning  the  nature  of  the  Constitution, 
because  it  was  then  claimed,  in  the  particular  controversy  which  they 
had  to  decide,  that  the  Constitution  was  established  by  the  states  in  their 
sovereign  capacities.  This  doctrine  was  distinctly  negatived  by  the 
court  in  the  following  terms:  'The  Constitution  of  the  United  States 
was  ordained  and  established,  not  by  the  states  in  tbeir  sovereign  ca- 
pacities, but  emphatically,  as  the  preamble  of  the  Constitution  declares, 
by  the  people  of  the  United  States.  There  can  be  no  doubt  that  it  was 
competent  to  the  people  to  invest  the  government  with  all  the  powers 
which  they  might  deem  proper  and  necessary,  to  extend  or  restrain 
those  powers  according  to  their  own  good  pleasure,  and  to  give  them 
permanent  and  supreme  authority.'  (Martin  vs.  Hunter,  Story,  J.,  1 
Wheaton,  304.) 

"A  few  years  later.  Chief  Justice  Marshall,  speaking  for  the  whole 
bench,  said:  'The  government  of  the  Union  is  a  government  of  the 
people;  it  emanates  from  tbem;  its  powers  are  granted  by  them,  and 
are  to  be  exercised  on  them  and  for  their  benefit.  .  .  .  The  govern- 
ment of  the  Union,  though  limited  in  its  powers,  is  supreme  within  its 
sphere  of  action;  and  its  laws,  wlien  made  in  pursuance  of  the  Consti- 
tution, form  the  supreme  law  of  the  land.'  {McCidloch  vs.  The  State  of 
Maryland,  4  Wheaton,  316. ) 

"Did  Story,  in  referring  to  the  preamble  of  the  Constitution,  or  did 
Marshall,  in  speaking  of  the  people,  mean  that  the  Constitution  was  or- 
dained and  established  by  the  people  of  the  United  States  regarded  as 
a  nation?  It  is  quite  apparent  that  the  preamble,  in  using  the  words 
'  We,  the  people  of  the  United  States  ...  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America,'  meant  that  tlie 
people  of  the  several  states  do  this  great  political  act.  It  is,  too,  made 
certain  that  the  very  eminent  jurists  and  magistrates,  whose  language 
I  am  now  considering,  did  not  regard  the  Constitution  as  ordained  and 
established  by  that  mass  of  people  of  whom  we  commonly  speak  as  the 
People  of  the  United  States  when  we  refer  to  them  as  a  nation.  This 
is  apparent  from  what  was  said  by  Chief  Justice  Marshall." 

Mr.  Curtis  then  quotes  a  long  extract  from  McCulloch  vs.  Maryland, 

46 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OP  THE  U.  S.    §  28 

§  28.  Views  of  Ciiaucellor  Keut  and  Joseph  Story. — These 
views  were  held  by  Mr.  Justice  Story,  wlio  expressed  them  in 

in  the  course  of  which  the  following  occurs  which  seems  to  indicate 
that  Chief  Justice  Marshall  considered  that,  while  the  people  acted  as 
people  of  the  States,  they  did  so  in  a  manner  that  was  superior  to  the 
governments  of  the  States  themselves. 

"  'In  discussing  this  question,  the  counsel  for  the  state  of  Maryland 
have  deemed  it  of  some  importance  in  the  construction  of  the  Consti- 
tution, to  consider  that  instrument,  not  as  emanating  from  the  people, 
but  as  the  act  of  sovereign  and  independent  states.  The  powers  of  the 
general  government,  it  has  been  said,  are  delegated  by  the  states,  who 
alone  are  truly  sovereign,  and  must  be  exercised  in  subordination  to 
the  states,  who  alone  possess  supienie  dominion.  It  would  be  difficult 
to  sustain  this  proposition.  The  convention  which  framed  the  Constitu- 
tion was,  indeed,  elected  by  the  state  legislatures.  But  the  instrument 
when  it  came  from  their  hands  was  a  mere  proposal,  without  obligation 
or  pretensions  to  it.  It  was  reported  to  the  then  existing  Congress  of 
the  United  States,  with  a  request  that  it  might  'be  submitted  to  a  con- 
vention of  delegates,  chosen  in  each  state,  by  the  people  thereof,  under 
the  recommendation  of  its  legislature  for  their  assent  and  ratification.' 
This  mode  of  proceeding  was  adopted;  and  by  the  Convention,  by  Con- 
gress, and  by  the  state  legislatures  the  instrument  was  submitted  to  the 
people. 

"  '  They  acted  upon  it,  in  the  only  manner  in  which  they  can  safely, 
effectively,  and  wisely  on  such  a  subject,  by  assembling  in  convention. 
It  is  true,  they  assembled  in  their  several  states;  and  where  else  should 
they  have  assembled  ?  No  political  dreamer  was  ever  wild  enough  to 
think  of  breaking  down  the  lines  which  separate  the  states,  and  of 
compounding  tlie  American  people  into  one  common  mass.  Of  conse- 
quence, when  they  act,  they  act  in  their  states.  But  the  measures  they 
adopt  do  not,  on  that  account,  cease  to  be  the  measures  of  the  people 
themselves,  or  become  the  measures  of  the  state  governments.  From 
these  conventions  the  Constitution  derives  its  whole  authority.  The 
government  proceeds  directly  from  the  people;  is  'ordained  and  estab- 
lished' in  the  name  of  the  people;  and  is  declared  to  be  ordained  'in 
order  to  form  a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  and  secure  the  blessings  of  liberty  to  themselves  and  to 
their  posterity.'  The  assent  of  the  states,  in  their  sovereign  capacity, 
is  implied  in  calling  a  convention,  and  thus  submitting  that  instrument 
to  the  people.  But  the  people  were  at  perfect  liberty  to  accept  or 
reject  it,  and  their  act  was  final. 

"  '  It  required  not  tlie  affirmance,  and  could  not  be  negatived,  by  the 
state  governments.  The  Constitution,  when  thus  adopted,  was  of  com- 
plete obligation  and  bound  the  state  sovereignties. 

"  '  It  has  been  said  that  the  people  had  already  surrendered  all  their 
powers  to  the  state  sovereignties  and  had  nothing  more  to  give.  But 
surely  the  question  whether  they  may  resume  and  modify  the  powers 
granted  to  government  does  not  remain  to  be  settled  in  this  country. 

47 


§  28  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  I. 

Martin  vs.  Hunter  as  quoted  at  length  in  the  foot-note  to 
the  preceding  section,  to  the  etfect  that  "  the  Constitution 

Much  more  might  the  leijitimacy  of  the  general  government  be  doubted 
had  it  been  created  by  the  states.  The  powers  delegated  to  the  state 
sovereignties  were  to  be  exercised  by  themselves,  not  by  a  distinct 
and  independent  sovereignty  created  by  themselves.  To  the  forma- 
tion of  a  league  such  as  was  the  Confederation,  the  state  sovereignties 
were  certainly  competent.  But  when,  '  in  order  to  form  a  more  perfect 
union,'  it  was  deemed  necessary  to  change  the  alliance  into  an  effective 
government  possessing  great  and  sovereign  powers  and  acting  directly  on 
the  people,  the  necessity  of  referring  it  to  the  people,  and  of  deriving 
its  powers  directly  from  them,  was  felt  and  acknowledged  by  all.  The 
government  of  the  Union,  then  (whatever  may  be  the  influence  of  this 
fact  on  the  case),  is  emphatically  and  truly  a  government  of  the  people. 
In  form  and  in  substance  it  emanates  from  them.  Its  powers  are 
granted  by  them,  and  are  to  be  exercised  directly  on  them  and  for  their 
benefit.'  "  Curtis'  Constitutional  History  of  the  United  States,  vol.  IL, 
pp.  71-74. 

VIEWS   OF   PROFESSOR   VON   HOLST. 

"Sec.  8.  The  Doctrine  of  State  Sovereignty.  The  premise  of  the  ar- 
gument of  the  so-called  state's-rlght  school  is  that  there  never  has  been, 
either  in  point  of  fact  or  in  point  of  law,  one  people  of  the  United  States. 
The  argument  proceeds  as  follows:  The  people  of  each  state,  without 
being  bound  in  any  way  by  the  action  or  the  non-action  of  the  other 
states,  decided  for  themselves,  through  their  authorized  representatives, 
whether  or  not  they  would  accept  the  draft  of  the  Philadelphia  conven- 
tion. That  the  constitution  is  a  work  of  states  is,  therefore,  a  fact  which 
cannot  be  gotten  rid  of  on  the  plea  that  the  constitution  begins  with  the 
words:  '  We,  the  people  of  the  United  States.'  If  these  words  do  not 
contain  an  evident  falsehood,  then  must  the  phrase  'United  States  '  be 
read  here  as  'states  united; '  but  so  read  they  say  simply  that  the  states, 
in  order  to  better  protect  their  interests,  have  entered  into  a  new  com- 
pact to  regulate  everything  in  regard  to  those  matters  as  to  which  they 
wish  to  form  one  commonwealth.  The  political  existence  of  the  Union 
was  not  changed.  The  states  were  sovereign  afterwards  as  well  as  be- 
fore, and  they  alone  were  sovereign  because  a  partition  of  sovereignty 
is  impossible  from  its  very  meaning.  It  would  be  to  turn  nature  upside 
down  if  the  creator  were  made  subordinate  to  the  creature.  There  was 
no  common  judge  standing  above  the  federal  powers  and  the  states.  If 
a  conflict  of  authority  broke  out  between  them,  the  decisive  judgment 
was  left  to  the  states,  that  is,  to  each  of  them  for  itself,  as  to  what 
riglits  they  had  reserved  for  themselves  and  what  powers  they  had  given 
to  the  Union.  If  the  federal  government,  in  the  opinion  of  a  single 
state,  exceeded  its  constitutional  authority,  that  state  was  justified  in 
declaring  the  particular  law,  so  far  as  it  came  in  question,  to  be  null  and 
void.  John  C.  Calhoun,  of  South  Carolina,  who  with  great  logical  acute- 
ness  developed  into  a  complete  system  this  so-called  doctrine  of  null!- 

48 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.    §  28 

of  the  United  States  was  ordained  and  established,  not  by 
the  States  in  their  sovereign  capacities,  but  emphatically,  as 

fication,  declared  that  nullification  was  an  'eminently  conservative  rem- 
edy,' and  affirmed  that  it,  and  it  alone,  could  prevent  the  dissolution 
of  the  Union.  The  younger  school  of  the  southern  state's-right  men  did 
not  stand  by  him  in  this.  The  doctrine  of  nullification  was  constantly 
pushed  into  the  background  and  often  completely  rejected,  and  on  the 
other  hand,  again  and  again  and  more  unconditionally  the  last  conse- 
quences were  deduced  from  the  premises  of  the  state's-school.  Since 
the  constitution  is  a  compact  between  sovereign  states,  they  said,  the 
states  have  the  power  to  cut  loose  from  the  Union  if  the  compact  is 
broken,  either  by  the  national  government  or  by  the  other  states, — if  it 
changes  from  a  means  of  protection  and  of  advancement  into  a  source  of 
destruction  and  certain  ruin.  Sovereignty  is  not  only  indivisible,  but 
cannot  be  parted  with,  and  the  states,  bound  only  through  an  act  of  their 
own  free  will,  can  be  bound  only  as  long  as  their  will  does  not  change ;  that 
is,  as  they  wish  to  be  bound.  Secession  is  thus  not  a  right  under  the 
constitution,  that  is,  a  constitutional  right,  but  it  is  inherent  in  the  na- 
ture of  the  states,  and  therefore  could  not  possibly  be  given  up  by  the 
adoption  of  the  constitution.  The  attempt  to  prevent  by  force  the  se- 
cession of  a  state  is  not  a  suppression  of  a  rebellion,  but  an  international 
war.  Others  did  not  go  as  far,  and  thought  they  had  found  a  middle 
course.  They  admitted  that  secession  was  a  revolutionary  act,  but  af- 
firmed that  the  federal  government  was  not  empowered  to  use  force 
against  the  sovereign  states.  This  was  the  non-coercion  theory.  They 
claimed  that  the  sovereign  states  had  the  right  of  neutrality;  that  is,  that 
although  they  had  not  cut  loose  from  the  Union,  they  were  justified  in 
standing  on  one  side  as  spectators  during  a  conflict  fought  out  with  the 
sword  between  the  federal  government  and  the  seceded  states. 

"  The  result  of  the  civil  war  made  this  one  of  the  dead  and  gone  doc- 
trines of  history.  After  its  champions  had  appealed  to  the  ultima  ratio 
and  had  been  completely  conquered,  it  had  no  more  political  vitality. 
And  it  will  never  again  have  it.  The  victorious  north  did  not  even  con- 
sider it  necessary  to  guard  itself  against  the  possibility  of  the  revival  of 
this  doctrine  by  inserting  in  the  constitution  a  new  express  declaration 
against  it.  The  opposite  doctrine  is  thus  unquestionably  valid  consti- 
tutional law  to-day,  whatever  one  may  think  on  the  question  as  to  what 
oriyUialhj  was  constitutional  law.  There  is  no  need  here  of  any  further 
critical  examination  of  the  doctrine  of  state  sovereignty.  This  is  in- 
volved in  the  statement  of  the  opposite  doctrine,  which  is  the  constitu- 
tional law  of  to-day. 

"  Sec.  9.  The  People  of  the  United  States  of  course  did  not  act  as  one 
uniform  whole  when  they  gave  themselves  this  constitution.  The  peo- 
ple, that  is,  the  part  of  the  population  of  each  state  endowed  with  full 
political  rights,  acted  for  themselves,  and  had  absolute  freedom  of  de- 
cision. They  could  accept  the  draft  of  the  Philadelphia  convention 
through  their  authorized  representatives,  or  they  could  reject  it,  and 
therewith  cut  loose  from  the  Union,  if  the  projected  organization  of  the 

4  49 


§  28  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH,  I. 

the  preamble  of  the  Constitution  declares  '  by  the  people  of 
the  United  States.'  "  ^ 

Chancellor  Kent,  in  his  Lectures  on  the  Government  and 
Constitutional  Jurisprudence,  which  forms  the  second  part 


§28. 

^Martin  vs.  Hunter,  U.  S.  Sup.  Ct. 
18,  1816,  1  Wheaton,  304,   p.  324, 


Stoky,  J.  See  note  3  to  preceding 
section  and  also  see  chap.  V.  §  138, 
et  seq. 


latter  were  accomplished.  But  their  ratification  did  not  make  the  draft 
a  constitution.  Their  ratification  was  simply  a  declaration,  binding  in 
law,  that  if  the  people  of  at  least  eight  other  states  came  to  the  same 
conclusion,  the  organization  of  the  Union  should  therewith  become  an 
accomplished  fact;  so  that,  for  the  states  concerned,  this  draft  should 
be  good  as  a  constitution  given  by  the  people  of  the  United  States  to 
the  United  States.  Only  by  and  through  the  choice  of  its  own  people 
did  each  state  become  a  constituent  member  of  the  Union.  This,  how- 
ever, did  not  happen  through  an  act  of  will  of  any  single  state,  but  the 
Philadelphia  draft  first  became  a  constitution  by  the  equal  and  co- 
operating consent  of  the  people  of  nine  states,  and  the  states  which  rati- 
fied it  afterwards  evidently  acquired  by  their  ratification  exactly  the 
same  legal  status  in  the  Union.  Chief  Justice  Cliase  was  unquestionably 
right  when  he  said  that  '  the  Union  of  the  states  never  was  a  purely  arti- 
ficial and  arbitrary  relation.'  This  fact,  however,  did  not  settle  the  mat- 
ter at  issue.  Whether  the  states  were  or  were  not  sovereign  from  the 
time  of  the  declaration  of  independence,  by  common  consent  every  one 
of  them  decided  as  a  sovereign  iipon  the  adoption  of  the  constitution, 
that  is,  upon  its  own  entrance  into  the  Union.  On  the  other  hand,  what- 
ever their  legal  status  in  the  confederation  and  their  political  nature  up 
to  this  time  might  have  been,  they  were  not  sovereign  by  common  con- 
sent, that  is,  according  to  the  constitution,  as  members  of  the  new 
Union.  The  Philadelphia  convention  began  its  labor  by  the  adoption 
of  a  resolution  which  declared  '  that  a,  national  government  ought  to  be 
established,  consisting  of  a  supreme  legislative,  executive  and  judiciary.' 
If  a  state  adopted  the  draft,  its  people  thereby  declared  that  they,  as 
far  and  as  widely  as  this  draft  provided,  should  be  fused  with  the  peo- 
ple of  the  other  states  into  one  people  of  the  United  States;  and  by  the 
concurrent  decision  of  all,  this  declaration,  put  in  this  way,  was  placed 
at  the  beginning  of  the  constitution,  so  that  this  proclaimed  itself  as 
the  work  of  this  one  people  of  the  United  States. 

"  Sec.  10.  The  Constitution  is  not  a  compact  between  the  states,  but 
it  is,  as  it  declares  itself  to  be,  a  constitution,  and  in  truth,  the  consti- 
tution of  the  United  States,  that  is,  of  the  Union,  of  the  commonwealth 
formed  out  of  the  states.  Therefore,  it  is  unconditionally  binding,  as 
well  for  the  whole  people  as  for  the  states  as  such.  No  room  for 
doubt  is  left,  for  the  second  section  of  the  sixth  article  reads:  'This 
constitution,  and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made  or  which  shall  be  made  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the  land, 

50 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.    §  28 

of  his  Commentaries,  sa3's  in  regard  to  this  element  of  na- 
tionality : 

"  The  Government  of  the  United  States  was  erected  by  the 
free  voice  and  joint  will  of  the  people  of  America,  for  their 
common  defence  and  general  welfare.  Its  powers  apply  to 
those  great  interests  which  relate  to  this  country  in  its  na- 
tional capacity,  and  which  depend  for  their  stability  and  pro- 
tection on  the  consolidation  of  the  Union,  It  is  clothed  with 
the  principal  attributes  of  political  sovereignty,  and  it  is 
justly  deemed  the  guardian  of  our  best  rights,  the  source  of 
our  highest  civil  and  political  duties,  and  the  sure  means  of 
national  greatness.  The  constitution  and  jurisprudence  of 
the  United  States  deserve  the  most  accurate  examination ; 
and  an  historical  view  of  the  rise  and  progress  of  the  Union, 
and  of  the  establishment  of  the  present  Constitution,  as  the 
necessary  fruit  of  it,  will  tend  to  show  the  genius  and  value 
of  the  government,  and  prepare  the  mind  of  the  student  for 
an  investigation  of  its  powers. 

"  The  association  of  the  American  people  into  one  body 
politic,  took  place  while  they  were  colonies  of  the  British 
empire,  and  owed  allegiance  to  the  British  crown.  That  the 
union  of  this  country  was  essential  to  its  safety,  its  prosperity, 
and  its  greatness  had  been  generally  known,  and  frequently 
avowed  long  before  the  late  revolution,  or  the  claims  of  the 
British  Parliament  which  produced  it."^ 

2 Kent's  Comra.  (14th  ed.),  Lecture  X.,  p.  202. 

and  the  judges  in  every  state  sliall  be  bound  thereby,  anything  in  the 
constitution  or  laws  of  any  state  to  the  contrary  notwithstanding.'  The 
constitution  is  thus  the  law,  and,  moreover,  the  supreme  law  of  the  land. 
The  constitutions  of  tlie  separate  states  are  their  fundamental  laws  only 
in  regard  to  tliose  matters  which  are  not  submitted  by  the  federal  con- 
stitution to  federal  authority.  This  provision  makes  the  constitution 
an  integral  part  of  the  constitution  of  each  state.  If  there  is  a  conflict 
between  them,  then  the  provision  of  the  state  constitution  opposed  to 
the  federal  constitution  is  ipso  facto  null  and  void.  All  judges,  and 
therefore,  evidently,  all  other  state  officers,  and  all  citizens  of  the  state, 
are  absolutely  bound  down  to  this  fundamental  principle.  He  who 
seeks  to  overthrow  it  lays  hands  on  the  fundamental  law  of  the  land. 
The  federal  government,  which  is  bound  to  give  the  constitution  life 
and  being  by  law,  is  therefore  not  only  empowered  but  directed  to  break 
down  any  opposition; — if  possible,  by  the  ordinary  and  peaceful  powers 
of  the  state  as  provided  by  the  constitution,  but  in  case  of  need,  by 

51 


§  29  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  I. 

§  20.  Samuel  F.  Miller's  views. — One  of  the  strongest 
expositions  ol"  tlie  completeness  of  the  sovereignty  of  the 
United  States  is  found  in  Justice  Samuel  F.  Miller's  "  Lec- 
tures on  the  Constitution,"  which  have  been  annotated  and 
published  since  his  death  by  Mr.  J.  C  Bancroft  Davis.  This 
volume  is  recognized  as  a  text-book  of  high  authority  on  the 
interpretation  of  the  Constitution  ;  and  justly  so,  as  the  au- 
thor was  often  called  upon  judicially  to  construe  it  while  he 
was  a  member  of  the  Supreme  Court,  and  the  annotator 
has  had  the  greatest  opportunity  of  studying  that  instru- 
ment, and  the  interpretation  thereof  by  the  Supreme  Court, 
during  his  term  as  its  reporter,  which  has  extended  over  a 
period  represented  by  more  than  seventy  volumes  of  the  re- 
ports, and  during  which  time  he  has  prepared  the  headnotes 
of  nearlv  every  important  decision  on  constitutional  ques- 
tions. In  the  notes  to  Lecture  I.  it  is  stated  that,  after  the 
fall  of  British  sovereignty,  the  broad  functions  of  general 
government  were  assumed  by  the  Continental  Congress  and 
exercised  without  question,  even  before  the  adoption  of  the 
Federal  Constitution  or  the  Articles  of  Confederation ;  that 
this  state  of  facts  existed  while  the  Constitution  was  being 
framed,  and  continued  after  its  adoption.  As  to  these  great 
natural  powers  of  sovereignty,  the  notes  say :  "  They  were 
never  enjoyed  or  exercised  by  the  States  separately,  and,  con- 
sequently, as  an  historic  fact,  independently  of  theory,  could 
not  have  been  retained  when  the  States  conferred  upon  the 
General  Government  the  other  enumerated  powers."  In 
speaking  of  the  acceptance  of  the  IS^orthwest  Territory, 
the  declaration  is  made  that  the  "  sovereignty  over  it  was 
vested  in  the  United  States  as  one  undivided  and  independ- 
ent nation.  The  simple  truth  is,  the  United  States  existed 
as  a  sovereign  power  from  the  necessities  of  the  emergency."  ^ 

In  1867  Mr.  Justice  Miller  pronounced  the  opinion  of  the 
Court  in  a  case  in  which  it  was  decided  that  no  State  had 
the  right  to  tax  railroad  and  stage  companies  for  passengers 
carried  out  of  the  State,  or  for  the  privilege  of  passing  through 

§29. 

^Miller's  Lectures  on  the  Constitution,  pp.  38-58. 
force."     The  Constitutional  Law  of  the  United  States  by  Dr.  H.  Von 
Hoist,  §§8-10,  pp.  39-44. 

52 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.     §  30 

the  State.  He  declined  to  concede  that  the  question  could 
be  determined  by  the  commerce  clause  of  the  Constitution 
but  held  that  the  tax  was  void  because  it  interfered  with 
National  rights  of  the  people  of  the  United  States.^  But  al- 
though he  was  an  ardent  upholder  of  the  sovereign  powers  of 
the  National  Government,  Mr.  Justice  Miller  never  lost  sight 
of  the  extensive  powers  of  the  States,  or  of  the  boundary 
line  between  Federal  or  National  and  State  jurisdiction,  as 
was  evidenced  by  his  far-reaching  opinion  in  the  Slaughter- 
house cases  which  will  be  referred  to  at  length  hereafter.^ 

§30.  JusticeFielcrsOpinioii.— In  1889,  Mr.  Justice  Field,' 
after  quoting  these  prior  declarations  of  the  court,  declared 
that,  "  the  United  States  formed  for  many  and  for  important 


'^ "  The  people  of  these  Uuited 
States  constitute  one  nation.  They 
have  a  government  in  which  all  of 
them  are  deeply  interested.  This 
government  has  necessarily  a  cap- 
ital established  by  law,  where 
its  principal  operations  are  con- 
ducted. Here  sits  its  legislature, 
composed  of  senators  and  repre- 
sentatives from  the  States  and  from 
the  people  of  the  States.  Here 
resides  the  President,  directing 
through  thousands  of  agents,  the 
execution  of  the  laws  over  all  this 
vast  country.  Here  is  the  seat  of 
the  supreme  judicial  power  of  the 
nation,  to  which  all  citizens  have  a 
right  to  resort  to  claim  justice  at  its 
hands.  Here  are  the  great  execu- 
tive departments,  administering 
the  offices  of  the  mails,  of  the 
public  lands,  of  the  collectiim  and 
distribution  of  the  public  revenues, 
and  of  our  foreign  relations.  These 
are  all  established  and  conducted 
under  the  admitted  powers  of  the 
Federal  government.  That  govern- 
ment has  a  right  to  call  to  this 
point  any  or  all  of  its  citizens  to 
aid  in  its  service,  as  members  of 
the  Congress,  of  the  courts,  of  the 
executive  departments,  and  to  fill 


all  its  other  offices;  and  this  right 
cannot  be  made  to  depend  upon 
the  pleasure  of  a  State  over  whose 
territory  they  must  pass  to  reach 
the  point  wherein  these  services 
must  be  rendered.  The  govern- 
ment, also,  has  its  offices  of  second- 
ary importance  in  all  other  parts 
of  the  country.  On  the  sea-coasts 
and  on  the  rivers  it  has  its  ports  of 
entry.  In  the  interior  it  has  its 
land  offices,  its  revenue  offices,  and 
its  sub-treasuries.  In  all  these  it 
demands  the  services  of  its  citizens, 
and  is  entitled  to  bring  them  to 
those  points  from  all  quarters  of 
the  nation,  and  no  power  can  exist 
in  a  State  to  obstruct  this  right 
that  would  not  enable  it  to  defeat 
tlie  purposes  for  which  the  govern- 
ment was  established."  Crandall 
vs.  Nevada,  U.  S.  Sup.  Ct.  1867, 
6  Wallace,  3.5,  p.  4;],  Miller,  J. 

3  The  Slaughter  House  Cases,  U.  S. 
Sup.  Ct.  1872,  10  Wallace,  30,  MiL- 
LKR,  J.,  and  see  §  357,  Chapter  XI. 
Vol.  II,  pp.  52,  et  seq. 

§30. 

^  Chae  Chan  Ping  vs.  United 
States,  U.  S.  Sup.  Ct.  1889,  130  U.  S. 
581,  p.  604,  Field,  J. 

53 


§  31  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  1. 

purposes  a  single  nation."  Continuing,  that  gifted  jurist, 
who  longer  than  any  other  justice  of  the  Supreme  Court, 
occupied  a  seat  upon  its  bench,  re-stated  as  the  rule  of  the 
Court  the  views  expressed  b}'^  Chief  Justice  Marshall  sixty- 
eight  years  before  as  follows :  ■•'  "  In  war,  we  are  one  people. 
In  making  peace  we  are  one  people.  In  all  commercial  reg- 
ulations, we  are  one  and  the  same  people.  In  many  other 
respects  the  American  people  are  one,  and  the  government 
which  is  alone  capable  of  controlling  and  managing  their 
interests  in  all  these  respects  is  the  government  of  the  Union. 
It  is  their  government,  and  in  that  character  they  have  no 
other.  America  has  chosen  to  be,  in  many  respects  and  to 
many  purposes,  a  nation  ;  and  for  all  these  purposes  her  gov- 
ernment is  complete.  To  all  these  objects  it  is  competent. 
The  people  have  declared,  that  in  the  exercise  of  all  powers 
given  for  these  objects,  it  is  supreme.  It  can,  then,  in  effect- 
ing these  objects,  legitimately  control  all  individuals  or  gov- 
ernments within  the  American  territory."^ 

There  is  a  significance  in  the  use  of  the  word  "  American  " 
throughout  this  declaration  of  unity,  for  by  that  name  the 
people  of  this  country  are  essentially  known  in  their  national, 
as  distinguished  from  their  federal,  capacity. 

§  31.  Views  of  Justices  Gray  and  Bradley. — The  same 
rule  was  reaffirmed  in  1893  by  Mr.  Justice  Gray,  who,  reiter- 
ating statements  made  by  Mr,  Justice  Bradley,^  expressed 
the  views  of  the  court  as  follows :  "  The  United  States  is 
not  only  a  government,  but  a  national  government,  and  the 
only  government  in  this  country  that  has  the  character  of 
nationality^  It  is  vested  with  power  over  all  the  foreign 
relations  of  the  country,  war,  peace  and  negotiations,  and 
intercourse  with  other  nations,  all  of  which  are  forbidden  to 
the  State  governments — for  local  interests  the  several  states 
of  our  Union  exist,  but  for  international  relations,  with  for- 


2  Cohens  vs.  Virginia,  U.  S.  Sup. 
Ct.  1821,  6  Wheaton,  264,  p.  413, 
Marshall,  Ch.  J. 

3  See  also  opinion  of  Justice 
Field,  sustaining  the  jurisdiction 
of  United  States  Consular  Courts 
in  foreign  countries:  In  re  Ross, 
U.  S.  Sup.  Ct.  1891,  140  U.  S.  453, 

64 


and     referred    to  at  length  §379, 
chapter     XII.     and    §§  448,     453, 
chapter  XV,  Vol.  II. 
§31. 

^  Knox  vs.  Lee,  {Legal-tender 
cases)  U.  S.  Sup.  Ct.  1870,  12  Wal- 
lace, 457,  p.  455,  Bbadlet,  J. 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.     §  31 

eign  powers  we  are  but  one  people,  one  nation,  one  power.^ 
.  .  .  The  United  States  are  a  sovereign  and  independ- 
ent nation,  and  are  vested  by  the  Constitution  with  the 
entire  control  of  international  relations,  and  with  all  the 
power  of  government  necessary  to  maintain  their  control 
and  to  make  it  effective.  The  only  government  in  this 
country  which  other  governments  recognize,  or  treat  with, 
is  the  government  of  the  Union.  The  only  American  flag 
known  throughout  the  world  is  the  flag  of  the  United  States. 
The  Constitution  speaks  with  no  uncertain  sound  upon  this 
subject."  ^ 

Mr,  Justice  Gray  has  also  expressed  the  opinion  of  the 
Supreme  Court  as  to  the  power  of  the  United  States  to  exer- 
cise the  natural  functions  of  sovereignty  not  referred  to 
expressly  in  the  Constitution,  but  which  are  exercisable  be- 
cause it  is  a  nation,  and  its  Government  must,  therefore,  be  a 
sovereign  power  endowed  with  every  element  of  nationality 
and  sovereignty.'* 

Judge  Gray's  opinion  in  the  Fong  Yue  Ting  case  was  re- 
ferred to  in  a  speech  recently  made  by  Senator  O.  H.  Piatt, 
of  Connecticut,  an  extract  from  which  is  quoted  in  the  notes.^ 


2  Following  Ghae  Chan  Ping  vs. 
United  States,  U.  S.  Sup.  Ct.  1889, 
130  U.  S.  581,  p.  606,  Field,  J. 

^Fong  Yue  Ting  vs.  United  States, 
U.  S.  Sup.  Ct.  1893,  149  U.  S,  698, 
pp.  705-707,  Gray,  J. 

*  Nishimura  Ekiu  vs.  United 
States,  U.  S.  Sup.  Ct.  1891, 142  U.  S. 
651,  Gray,  J. 

Jones  vs.  United  States,  U.  S.  Sup. 
Ct.  1890,  137  U.  S.  202,  Gray,  J. 

5  December  19,  1898  ( Cong.  Rec- 
ord, p.  288,  et.  seq.,  and  see  numer- 
ous authorities  referred  to),  after 
quoting  from  Judge  Gray's  opinion. 
Senator  Piatt  continued  in  regard 
to  the  nationality  of  the  United 
States  as  follows: 

"The  doctrine  was  denied  by 
Hayne.  It  was  triumphantly  as- 
serted by  Webster  in  his  great  de- 
bate in  which  he  first  made  it  plaia 


to  the  American  people  that  the 
United  States  lacked  no  element  of 
nationality.  It  was  denied  in  the 
nullification  acts.  It  was  triumph- 
antly asserted  by  Jackson  when  he 
threatened  to  hang  John  C.  Cal- 
houn, and  so  cowed  the  incipient 
rebellion.  It  was  denied  in  the 
ordinances  of  secession  ;  but  it 
was  again  gloriously  asserted  by 
Abraham  Lincoln  when  he  issued 
his  call  for  75,000  volunteer  troops 
to  preserve  the  Nation,  and  the  peo- 
ple gloriously  responded.  It  has 
been  written  in  the  books.  It  has 
been  written  in  the  published  ut- 
terances of  statesmen  from  the 
time  when  the  people  of  the  States 
made  our  Constitution  down  to  the 
present  time. 

"But  Mr.  President,  it  has  been 
otherwise   written.      It  has  beeo 

55 


§  32  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  I. 

§  32.  Navassa  Islands  Case. —  The  ownership  by  the 
United  States  of  the  Kavassa  and  other  Guano  Islands,  over 
■which  it  exercises  governmental  control,  rests  exclusively 
upon  discovery  and  occupation  and  acts  done  in  pursuance 
of,  and  in  conformity  with,  the  acts  of  Congress  passed  in 
regard  to  Guano  Islands.^     These  acts,  in  some  respects,  are 


who  lost  husbands,  of  the  mothers 
who  lost  children,  of  the  children 
who  lost  fathers.  It  is  too  late  to 
deny  it,  Mr.  President;  it  is  time 
to  believe  in  it  with  a  living,  sav- 
ing faith,  from  which  all  doubt  is 
eradicated." 


written  in  the  blood  which  deluged 
the  battletields  of  the  Civil  War 
for  four  long  years.  It  has  been 
written  with  the  sword  upon  the 
heart  of  every  true  American  citi- 
zen. It  has  been  written  on  the 
mourning  weeds  of  the  widows 
§32. 

1  TITLE  LXXII. 

EEVISED   STATUTES    OF   UNITED   STATES — GUANO   ISLANDS. 

"Sec.  5570.  Claim  of  United  States  to  islands.  Whenever  any  citizen 
of  the  United  States  discovers  a  deposit  of  guano  on  any  island,  rock, 
or  key,  not  within  the  lawful  jurisdiction  of  any  other  government,  and 
not  occupied  by  the  citizens  of  any  other  government,  and  takes  peace- 
able possession  there(^f,  and  occupies  the  same,  such  island,  rock,  or 
key  may,  at  the  discretion  of  the  President,  be  considered  as  appertain- 
ing to  the  United  States.     (18  Aug.  1856,  c.  164,  s.  1,  v.  11,  p.  119.) 

"Sec.  5571.  Notice  of  discovery,  and  proofs  to  be  furnished.  The  dis- 
coverer shall,  as  soon  as  practicable,  give  notice,  verified  by  affidavit,  to 
the  Department  of  State,  of  such  discovery,  occupation,  and  possession, 
describing  the  island,  rock,  or  key,  and  the  latitude  and  longitude  there- 
of, as  near  as  may  be,  and  showing  that  such  possession  was  taken  in 
the  name  of  the  United  States;  and  shall  furnish  satisfactory  evidence 
to  the  State  Department  that  such  island,  rock,  or  key  was  not,  at  the 
time  of  the  discovery  thereof,  or  of  the  taking  possession  and  occupation 
thereof  by  the  claimants,  in  the  possession  or  occupation  of  any  other 
government  or  of  the  citizens  of  any  other  government,  before  the  same 
shall  be  considered  as  appertaining  to  the  United  States. 

"Sec.  5572.  Comi^letion  of  proof  in  case  of  death  of  discoverer.  If 
the  discoverer  dies  before  perfecting  proof  of  discovery  or  fully  comply- 
ing with  the  provisions  of  the  preceding  section,  his  widow,  heir,  execu- 
tor, or  administrator,  shall  be  entitled  to  the  benefits  of  such  discov- 
ery, upon  complying  with  the  provisions  of  this  Title ;  but  nothing  herein 
shall  be  held  to  impair  any  rights  of  discovery  or  any  assignment  by  a 
discoverer  heretofore  recognized  by  the  United  States.  (2  April,  1872, 
0.  81,  s.  1,  V.  17,  p.  48.) 

"  Sec.  5573.  Exclusive  privileges  of  discoverer.  The  discoverer,  or  his 
assigns,  being  citizens  of  the  United  .States,  may  be  allowed,  at  the  pleas- 
ure of  Congress,  the  exclusive  right  of  occupying  such  island,  rocks,  or 

56 


CH.  I.]   NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.    §  32 

apparently  repugnant  to  constitutional  prohibitions  and  lim- 
itations ;  arbitrary  rules  and  regulations,  made  for  the  gov- 

keys,  for  the  purpose  of  obtaining  guano,  and  of  selling  and  delivering 
the  same  to  citizens  of  the  United  States,  to  be  used  therein,  and  may  be 
allowed  to  charge  and  receive  for  every  ton  thereof  delivered  alongside 
a  vessel,  in  proper  tubs,  within  reach  of  ship's  tackle,  a  sum  not  ex- 
ceeding eight  dollars  per  ton  for  the  best  quality,  or  four  dollars  for 
every  ton  taken  while  in  its  native  place  of  deposit.  ( 18  Aug.  1856,  c.  1G4, 
s.  2,  V.  11,  p.  119.) 

"  Sec.  5574.  Restrictions  upon  exportation.  No  guano  shall  be  taken 
from  any  such  island,  rock,  or  key,  except  for  the  use  of  the  citizens 
of  the  United  States  or  of  persons  resident  therein.  The  discoverer,  or 
his  widow,  heir,  executor,  administrator,  or  assigns,  shall  enter  into 
bond,  in  such  penalty  and  with  such  sureties  as  may  be  required  by  the 
President,  to  deliver  the  guano  to  citizens  of  the  United  States,  for  the 
purpose  of  being  used  therein,  and  to  none  others,  and  at  the  price  pre- 
scribed, and  to  provide  all  necessary  facilities  for  that  purpose  within 
a  time  to  be  fixed  in  the  bond;  and  any  breach  of  the  provisions  thereof 
shall  be  deemed  a  forfeiture  of  all  rights  accruing  under  and  by  virtue 
of  this  Title.  This  section  shall,  however,  be  suspended  in  relation  to  all 
persons  who  have  complied  with  the  provisions  of  this  Title,  for  five 
years  from  and  after  the  fourteenth  day  of  July,  eighteen  hundred  and 
seventy-two.  (28  July,  1866,  c.  298,  s.  3,  v.  14,  p.  328.  2  April,  1872, 
c.  81,  s.  1,  V.  17,  p.  48.) 

"  Sec.  5575.  Regulation  of  guano  trade.  The  introduction  of  guano 
from  such  islands,  rocks,  or  keys,  shall  be  regulated  as  in  the  coasting- 
trade  between  different  parts  of  the  United  States,  and  the  same  laws 
shall  govern  the  vessels  concerned  therein.  (18  Aug.  1856,  c.  164,  s.  3, 
V.  11,  p.  120.) 

"  Sec.  5576.  Criminal  jurisdiction.  All  acts  done,  and  offenses  or 
crimes  committed,  on  any  such  island,  rock,  or  key,  by  persons  who 
may  land  thereon,  or  in  the  waters  adjacent  thereto,  shall  be  deemed 
committed  on  the  high  seas,  on  board  a  merchantship  or  vessel  belong- 
ing to  the  United  States;  and  shall  be  punished  according  to  the  laws  of 
the  United  States  relating  to  such  ships  or  vessels  and  offenses  on  the 
high  seas,  which  laws  for  the  purpose  aforesaid  are  extended  over  such 
islands,  rocks,  and  keys. 

"Sec.  5577.  Employment  of  land  and  naval  forces.  The  President  is 
authorized,  at  his  discretion,  to  employ  the  land  and  naval  forces  of 
the  United  States  to  protect  the  rights  of  the  discoverer  or  of  his 
widow,  heir,  executor,  administrator,  or  assigns. 

"  Sec.  5578.  Right  to  abandon  islands.  Nothing  in  this  Title  con- 
tained shall  be  construed  as  obliging  the  United  States  to  retain  posses- 
sion of  the  islands,  rocks,  or  keys,  after  the  guano  shall  have  been  re- 
moved from  the  same." 

See  also  the  Guano  Islands  Acts  of  August  18,  1856,  chapter  164;  11 
U.  S.  Stat,  at  Large,  119;  28  July,  1868,  c.  298,  §  3,  v.  14,  p.  328;  2 

57 


§  32  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  I. 

ernraent  of  the  islands,  and  for  commercial  intercourse  there- 
with, so  far  from  being  uniform  with  those  in  force  in  the 
States,  and  other  Territories  of  the  union,  are  applicable  only 
to  these  islands.^ 

Three  men  who  had  committed  murder  in  one  of  these 
islands  were  brought  to  this  country,  indicted,  and  tried  in 
accordance  with  these  statutory  provisions  ;  they  were  found 
guilty  as  charged,  and  sentenced.  An  appeal  was  taken  to 
the  Supreme  Court  where  able  counsel  contended  that  no- 
where in  the  Constitution  could  be  found  the  power  of  the 
United  States  either  to  acquire  these  islands,  or  to  govern 
them  by  the  arbitrary  and  unequal  rules  "vvhich  had  been 
provided  for  them  and  their  inhabitants ;  thus  in  the  most 
solemn  manner  conceivable  the  court  was  called  upon  to 
determine  the  rights  and  powers  of  this  government ;  under 
such  circumstances  it  was  bound  by  the  ])rinciple  of  Amer- 
ican and  English  jurisprudence,  which  is  the  birthright  of 
our  nation,  that  the  benefit  of  the  doubt  must  in  every  in- 
stance be  given  to  the  accused.  If  there  had  been  any  lack 
of  sovereignty  in  the  Government  of  the  United  States,  in 
regard  to  the  external  affairs  of  the  country  the  convictions 
could  not  have  been  sustained ;  the  test  was  the  most  severe 

April,  1872,  c.  81,  §  1,  v.  17,  p.  48,  on  which  the  above  quoted  sections 
of  the  Revised  Statutes  are  founded. 

2  The  sovereignty  and  jurisdiction  of  the  United  States  have  attached 
to  the  territory  embraced  in  a  number  of  islands,  under  the  act  of  Au- 
gust 18,  1856,  as  will  appear  from  the  following  correspondence  on  file 
in  the  Treasury  Department : 

Treasury  Department, 
First  Comptroller's  Office, 
Washington,  D.  C,  September  16,  1893. 
Hon.  S,  WiKE, 

Assistant  Secretary  of  the  Treasury. 
Sir:  In  compliance  with  the  request  contained  in  your  letter  of  the 
15tli  instant,  I  have  the  honor  to  transmit  herewith  a  list  of  the  guano 
islands  bonded  under  the  act  of  August  18,  1856,  as  appears  from  the 
bonds  on  tile  in  this  office  up  to  the  present  date.  You  will  observe 
that  the  list  is  the  same  as  that  transmitted  with  letter  from  this  office, 
dated  December  22,  1885,  no  additional  bonds  having  been  received 
since  that  date. 

Respectfully  yours, 

R.  S.  BOWLEB, 

Comptroller. 

58 


CH.  T.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  XT.  S.    §  32 

one  that  could  be  applied,  but  the  principles  of  sovereignty 
and  nationality  withstood  every  argument  brought  against 
them ;  the  judgments  were  aiRrmed  on  the  ground  that  the 
United  States,  as  a  sovereign  power,  and  possessing  every 
element  of  nationality  and  sovereignty,  had  taken  possession 
of  the  islands  and  governed  them  under  and  by  virtue  of  the 
broad  right,  recognized  by  international  law,  of  acquiring 
territory  by  discovery  and  occupation ;  that  it  possessed  and 
exercised  this  right  in  the  same  manner  and  to  the  same  ex- 
tent as  it  is  possessed,  and  can  be  exercised,  by  every  other 
sovereign  power,  as  a  general  attribute  of  sovereignty,  and 
one  which  is  given  by  the  law  of  nations  and  of  nature,  and 
exercisable  to  the  fullest  extent  recognized  by  those  laws, 
and  that  it  is  not  a  merely  delegated  power  under  the  Con- 


Inclosed  is  a  list  of  about  75  guano  islands,  appertaining  to  the  United 
States,  bonded  under  the  act  of  August  18, 1856,  as  appears  from  bonds 
on  file  in  the  office  of  the  First  Comptroller  of  the  Treasury,  Septem- 
ber 16,  1893,  tabulated  as  follows: 


Num- 
ber of 
bond. 


Date  of  bond. 


Name  of  Island. 


Latitude. 


Longitude. 


CiBCULAB — Guano  Islands  Not  Appertaining  to  United  States. 

[1894.— Department  No.  176.— Bureau  of  Navigation.] 

Treasury  Department, 

Office  of  the  Secretary, 
Washington,  D.  C,  November  21,  1894. 
To  Collectors  of  Ctistoms  and  others  : 

At  the  request  of  the  Secretary  of  State,  the  following-named  "^uano- 
islands,"  specified  in  lists  issued  by  this  Department  of  guano  islands 
appertaining  to  the  United  States,  will  be  considered  as  stricken  from 
said  list,  and  no  longer  included  among  the  guano  islands  bonded  by 
the  United  States  under  the  Act  of  August  18,  1856,  viz: 

Arenas,  Pajoras,  Arenas  Key, 

Perez,  Chica,  Western  Triangles. 

S.  WiKE,  Assistant  Secretary. 

[Extract  from  Report  of  Charles  E.  Magoun,  Law  Officer,  Division  of 
Insular  Affairs,  War  Department,  on  legal  status  of  islands  acquired  by 
the  United  States,  February,  1900,  and  also  see  this  report  for  collation 
of  cases  on  nationality  and  sovereignty  of  United  States  and  right  to 
acquire  territory.] 

59 


§82 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  I. 


stitution,  or  limited  by  anything  contained  in  the  enumera- 
tion of  powers  granted  to  the  Central  Government.^ 
§  33.  Right  of  the  United  States  to  acquire  territory. — 

The  right  of  the  United  States  to  acquire  territory,  under 
its  treaty-making  power,  and  also  by  virtue  of  the  power  it 
possesses  as  a  sovereign  nation,  will  be  the  subject  of  a  separate 
chapter  devoted  to  that  point  in  particular ;  no  further  refer- 
ence, therefore,  will  be  made  to  it  in  this  chapter.^  The  ex- 
tended reference  to  the  acquisition,  and  government  of  the 
Guano  Islands  has  been  made  at  this  point  so  as  to  bring 
prominently  into  view  the  regular  method  by  which  this  at- 
tribute of  sovereignt}'  has  been  exercised  and  also  in  which 
it  has  been  acknowledged  by  every  department  of  the  Gov- 
ernment.^ 


3  Jones  vs.  United  States,  U.  S.  Sup. 
Ct.  1890,  137  U.  S.  202,  Gray,  J. 

See  also  Duncan  vs.  Navassa 
Phosphate  Co.,  U.  S.  Sup.  Ct.  1891, 
137  U.  S.  647,  Gray,  J.  (syllabus  as 
follows)  : 

"  The  right  conferred  by  the 
United  States,  under  the  Guano 
Islands  Act  of  August  18th,  1856, 
c.  164,  (Rev,  Stat.  tit.  72,)  upon  the 
di-scoverer  of  a  deposit  of  guano 
and  his  assigns,  to  occupy,  at  the 
pleasure  of  Congress,  for  the  pur- 
pose of  removing  the  guano,  an 
island  determined  by  the  President 
to  apjjertain  to  the  United  States, 
is  not  such  an  estate  in  land  as  to 
be  subject  to  dovrer,  notwithstand- 
ing the  act  of  April  2,  1872,  c.  81, 
(Rev.  Stat,  sec.  .5572, )  extending  the 
provisions  of  the  act  of  1856  '  to  the 
widow,  heirs,  executors  or  ad- 
ministrators of  such  discoverer'  if 
he  dies  before  fully  complying 
with  its  provisions." 

§33. 

^Cliap.  II.,  and  see  especially  for 
Insular  Cases,  §§  61a,  et  seq.  See 
also  §  101,  chapter  III. 

2  On  May  27,  1901,  the  Supreme 
Court  decided  Be  Lima  vs.  Bidwell, 

60 


BoionesY?,.  Bidioell,  and  other  Insu- 
lar Cases,  which  will  be  reported  in 
volume  182,  United  States  Reports, 
in  which  the  right  of  the  United 
States  to  acquire  and  govern  terri- 
tory is  discussed  at  length.  Those 
cases  are  referred  to  more  at  length 
in  §§  61a,-617i,  pp.  117,  et  seq.,  and 
at  other  points  in  this  volume  there 
referred  to:  while  the  members  of 
the  Court  differed  among  them- 
selves as  to  the  status  of  territory 
when  acquired,  and  as  to  the  rela- 
tions of  acquired  possessions  and 
the  inhabitants  thereof  to  States 
and  citizens  of  the  United  States, 
the  Court  was  unanimous  as  to  the 
right  of  acquisition  and  that  the 
United  States  is  a  sovereign  nation, 
and  possessed  of  every  attribute  of 
nationality  and  sovereignty.  The 
former  decisions  of  the  Supreme 
Court  as  to  the  extent  of  congres- 
sional power,  and  of  constitutional 
limitations  thereon,  over,  and  in  re- 
gard to,  territories  which  were  cited 
in  the  arguments  before,  and  opin- 
ions of  the  Court  in  the  Insular 
Cases  are  collated  in  the  Insular 
Cases  Appendix  at  end  of  volume. 


CH.  I.]     NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.    §  35 

§  34.  General  consensus  of  opinion  in  support  of  Nation- 
ality of  United  States. — A  long  line  of  other  expressions  of 
opinion  from  Alexander  Hamilton  to  date  could  be  quoted, 
but  the  precedents  referred  to,  together  with  the  decisions 
and  opinions  collated  in  the  subsequent  chapters,  and  referred 
to  in  the  footnotes,  should  certainly  be  accepted  as  fully  an- 
swering every  question  which  has  ever  been  raised  as  to  the 
completeness  of  the  sovereignty  and  nationality  of  the  Uni- 
ted States.  It  is  almost  inexplicable  why  any  person  or 
party  should  desire  to  limit  those  powers  of  the  Federal 
Government,  which  are  exercised  exclusively  in  regard  to 
matters  not  only  wholly  within  its  domain,  but  which  are 
also  wholly  beyond  the  power  or  control  of  any  State ;  al- 
though no  party,  person,  state  or  faction  would  be  benefited 
by  imposing  such  limitations,  yet  from  the  earliest  period  of 
our  national  history  there  has  always  been  a  party  which 
for  unexplained  and  unaccountable  reasons  has  taken  for  its 
watchword  the  curtailment  of  national  power,  not  only  as  to 
those  matters  which  relate  to  the  States,  and  in  which  the 
power  of  the  State  increases  relatively  as  the  power  of  the 
Central  Government  diminishes,  but  also  as  to  matters  ex- 
clusively within  the  domain  of  the  JSTational  Government 
and  which  require  for  their  proper  administration  the  fullest 
measure  of  nationality,  sovereignty  and  power. 

§  35.  Gradual  development  of  theory  of  Nationality. — 
The  theory  of  complete  nationality  and  sovereignty  of  the 
United  States  has  been  gradually  developed ;  its  evolution 
commences  with  the  early  decisions  of  Chief  Justice  Mar- 
shall, notably  in  the  Florida  or  Canter  case^  which  will  be 
alluded  to  in  another  chapter,  in  which  he  said  that  the 
right  to  acquire  territory  was  derived  from  the  war  or  treaty- 
making  power  under  constitutional  delegation,  or  as  an  at- 
tribute of  sovereignty  existing  in  the  government ;  he  de- 
clared, however,  that  it  was  unnecessary  at  that  time,  to 
decide  under  which  head  to  classify  it ;  its  complete  develop- 
ment is  shown  in  the  decision  of  Mr,  Justice  Gray  in  the 
Navassa  Island  case,^  in  which  he  unhesitatingly  and  broadly 

§35.  I  Peters,    511,    Marshall,    Ch.  J., 

^American     Insurance      Co.    vs.  ipost. 
Canter,   U.    S,    Sup.    Ct.    1828,    l'     ^  Jones  vs.    United  States,  U.  S. 

61 


§36 


TEEATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  I. 


asserted  that  the  right  of  acquisition  of  territory  was  beyond 
doubt  an  attribute  of  the  United  States  Government,  not 
under  constitutionally  delegated  power,  but  an  attribute 
vested  in  it  under  the  law  of  nations,  in  the  same  manner  and 
to  the  same  extent  as  the  power  is  possessed  by  the  govern- 
ments of  other  sovereign  nations. 

§  36.  Limitations  by  fuudamental  principles.^ — Side  by 
side  with  the  theory  of  complete  nationality  there  has  also 
developed,  as  was  necessary  and  proper,  the  theory  that  these 


Sup.  Ct.  1890,  137  U.  S.  202, 
Gray,  J.,  and  see  §  32  and  notes 
thereunder,  ante. 

§36. 

1  The  cases  referring  to  the  limi- 
tation of  governmental  powers  by 
the  fundamental  principles  on 
which  this  government  is  based  will 
be  found  in  the  collation  of  cases 
referred  to  in  the  arguments  before, 
and  opinions  of  the  Supreme  Court 
in  the  insular  cases  appendix 
at  end  of  this  volume,  including: 

Bank  of  Columbia  vs.  Okely,  U.  S. 
Sup.  Ct.  1819,  4  Wheaton,  235, 
Johnson,  J.; 

Chicago,  etc..  By.  Co.  vs.  Tomp- 
kins, U.  S.  Sup.  Ct.  1900,  176  U.  S. 
167,  Brewer,  J.; 

CummingsYS.  Missouri,  U.  S.  Sup. 
Ct.l866,   4   Wall.    277,    Field,  J.; 

Dartmouth  College  vs.  Wood- 
ward, U.  S.  Sup.  Ct.  1819,4  Wheaton, 
518,  Marshall,  Ch.  J. ; 

Kemmler,  In  re,  U.  S.  Sup.  Ct. 
1890, 136  U.  S.  436,  Fuller,  Ch.  J.; 

Legal  Tender  Cases,  (1)  XJ.  S.  Sup. 
Ct.  1869,  8  Wall.  603,  Chase,  Ch.  J. ; 
(2)  1870,  12  Wall.  457,  Strong,  J; 
(.3)  1884,  110  U.  S.  421,  Gray,  J.; 

Loan  Association  vs.  Topeka, 
U.  S.  Sup.  Ct.  1874,  20  Wall.  655, 
Miller,  J.; 

Lord  Bishop  of  Natal,  Privy- 
Council  1864,  3  Moore  Priv.  Coun. 
N.  S.  115,  Westbury,  Lord  Chan.; 

Marhury  vs.  Madison,  U.  S.  Sup. 

62 


ct.  1803,  1  Cranch,  137,  Mae- 
shall,  Ch.  J. ; 

Maxioell  vs.  Doio,  U.  S.  Sup.  Ct. 
1900,  176  U.  S.  581,  Peckham,  J.; 

Mormon  Church  Case,  U.  S.  Sup. 
Ct.  1890,  136  U.  S.  1,  Bradley,  J.; 

Murphy  vs.  Ramsey,  U.  S.  Sup. 
Ct.  1885,  114  U.  S.  15,  Mat- 
thews, J.; 

Sharpless  vs.  The  Mayor,  &c.,  21 
Penn.  St.  Rep.  147,  Sup.  Ct.  Pa., 
1853,  Black,  J.; 

Slaughterhouse  Cases,  U.  S.  Sup. 
Ct.  1872,  16  Wall.  36,  Miller,  J.; 

Weimar  vs.  Bunbury,  Sup.  Ct. 
Mich.1874, 30  Mich.  201,  Cooley,  J. ; 

Tick  Wo  vs.  Hopkins,  U.  S.  Sup. 
Ct.  1886,  118  U.  S.  356,  Mat- 
thews, J. ;  and  see  p.  369,  where 
the  court  says,  in  holding  one  of 
the  anti-Chinese  ordinances  of  San 
Francisco  as  void  under  the  Four- 
teenth Amendment,  "  But  the  fun- 
damental rights  to  life,  liberty  and 
the  pursuit  of  happiness,  consid- 
ered as  individual  possessions,  are 
secured  by  those  maxims  of  consti- 
tutional law  which  are  the  monu- 
ments showing  the  victorious  prog- 
ress of  the  race  in  securing  to  men 
the  blessings  of  civilization  under 
the  reign  of  just  and  equal  laws; 
so  that  in  the  famous  language  of 
the  Massachusetts  Bill  of  Rights, 
the  government  of  the  common- 
wealth '  may  be  a  government  of 
laws  and  not  of  meru' " 


CH.  I.]     NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.    §  37 


natural  and  inherent  attributes  of  sovereignty  possessed  by 
the  Government  of  the  United  States  in  its  National  charac- 
ter, are  limited  in  their  exercise,  not  by  constitutional  pro- 
visions, but  by  those  fundamental  principles  upon  which  the 
Government  of  the  United  States,  and  of  its  people,  is  based. 

This  joint  development  of  the  two  theories  is  not  only  per- 
fectly consistent,  but  one  necessarily  grows  and  expands  with 
the  other,  and  in  such  development  each  furnishes  to  the 
other  mutual  support  and  strength. 

§  37.  Views  of  Ex-Presideut  Harrison.* — True  it  is  that 
Ex-President  Harrison,  in  his  recent  utterances  at  Ann 
Arbor  and  in  the  N'orth  American  Review,^  declares  that 
the  theory  of  limitations  by  fundamental  principles  is  not 
in  accord  with  American  constitutional  history ;  learned  as 
he  is,  however,  in  constitutional  and  international  law,  for 
unquestionably  Mr.  Harrison  is  one  of  our  leading  author- 
ities upon  those  great  branches  of  jurisprudence,  as  was  evi- 
denced by  his  remarkable,  and  in  many  respects  successful, 
argument  before  the  Venezuelan  arbitration  tribunal,  he 
evidently  overlooks  the  fact  that  the  doctrine  of  limitation 
by  fundamental  principles  has  been  clearly  enunciated  and 
defined  by  the  Supreme  Court ;  in  fact  that  court  has  made 
it  a  part  of  the  doctrine  of  acquisition  of,  and  sovereignty 
over,  the  territories,  which  Mr.  Harrison  himself  admits  has 
not  only  been  thorouglily,  but  properly,  established  as  part  of 
the  constitutional  law  of  this  country.  He  declares  that  our 
forefathers  ^vere  not  content  with  general  and  unwritten  lim- 
itations, but  forced  into  the  Constitution  written  limitations 
as  to  the  exercise  of  sovereignty  by  the  ruling  powers.^  In 
*  These  sections  were  written  prior  to  the  death  of  Mr.  Harrison. 


§37. 

i"The  Status  of  Annexed  Terri- 
tory and  of  its  Free  Civilized  In- 
habitants" by  Benjamin  Harrison, 
formerly  President  of  the  United 
States,  North  American  Review, 
January,  1901,  p.  110. 

2  "For  themselves,  our  fathers, 
were  not  content  with  an  assur- 
ance of  these  great  rights  that 
rested  wholly  upon  the  sense  of 


justice  and  benevolence  of  the 
Congress.  The  man  whose  protec- 
tion from  wrong  rests  wholly  upon 
the  benevolence  of  another  man  or 
of  a  Congress,  is  a  slave — a  man 
without  rights.  Our  fathers  took 
security  of  the  governing  depart- 
ments they  organized;  and  that, 
notwithstanding  the  fact  that  the 
choice  of  all  public  officers  rested 
with  the  people.  When  a  man 
63 


:M>Lrrv)i^ 


§38 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  I. 


this,  however,  so  far  as  he  refers  to  government  of  terri- 
tories, he  is  clearly  wrong ;  the  decision  of  the  Supreme  Court 
shows  that  fundamental,  rather  than  constitutional,  limita- 
tions are  frequently  the  only  check  upon  congressional  ac- 
tion. 

Undoubtedly,  as  the  Supreme  Court  asserted  in  Murphy 
vs.  Ramsay^^  complete  and  unlimited  power  is  repugnant  to 
our  institutions  ;  but  it  also  declared  in  the  Mormon  Church 
case,'*  that  those  limitations  in  many  instances  are  found,  not 
in  the  Constitution,  but  in  the  fundamental  principles  upon 
Avhich  our  govei-nmeut  is  established  ;  these  two  judicial  dec- 
larations have  been  repeatedly  followed  in  later  decisions  of 
the  Supreme,  and  other  courts,  of  the  United  States,  refer- 
ence to  some  of  which  have  been  collated  in  the  next  chapter. 

§  38.  Unsoundness  of  Mr.  Harrison's  views. — Mr.  Harri- 
son takes  a  very  gloomy  view  of  the  results  of  the  doctrine 
of  fundamental  principles ;  in  fact,  he  refers  to  it  somewhat 
sarcastically  as  one  of  the  limitations,  not  by  principles  of  gov- 
ernment, but  by  heiievolence  I  he  also  seems  to  feel  that  the 
doctrine  if  accepted,  necessarily  implies  that  the  only  limita- 
tions which  can  be  placed  upon  congressional  action  are  such 
as  may  appeal  to  Congress  in  its  existing  mood  at  the  time  of 
the  legislation.^ 

But  if  this  doctrine  of  limitation  is  to  be  applied  to  con- 
gressional action  in  regard  to  those  matters  in  which  the 


strictly  limits  the  powers  of  an 
agent  of  his  own  choice,  and  exacts 
a  bond  from  him,  to  secure  his 
faithfulness,  he  does  not  occupy 
strong  ground  when  he  insists  that 
another  person,  who  had  no  part 
in  this  selection,  shall  give  the 
agent  full  powers  without  a  bond. 
"  If  there  is  anything  that  is 
characteristic  in  American  Con- 
stitutions, state  and  national,  it  is 
the  plan  of  limiting  the  powers  of 
all  public  officers  and  agencies. 
You  shall  do  this;  you  may  do 
this;  you  shall  not  do  this — is  the 
form  that  the  schedule  of  powers 
always  takes.  This  grew  out  of 
our  experience  as  English  colonies. 

64 


A  government  of  unlimited  legis- 
lative or  executive  powers  is  an 
un-American  government.  And, 
for  one,  I  do  not  like  to  believe  that 
the  framers  of  the  National  Con- 
stitution and  of  our  first  State 
Constitutions  were  careful  only 
for  their  own  liberties." 

^Murphy  vs.  Ramsay,  U.  S.  Sup. 
Ct.  1885, 114  U.  S.  15,  Matthews,  J. 
■*  Mormon  Church  vs.  United  States, 
U.  S.  Sup.  Ct.  1890,  136  U.  S.  1, 
Bk ADLEY,  J. ,  And  see  extract  from 
opinion  in  §  60,  chapter  II,  post. 

§38. 

^This  also  applies  to  the  article 
of  ex-Senator  Edmunds,  No.  Am. 
Rev.  Aug.,  1901. 


CH.  I.]     NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.    §  39 

Federal  Government  is  supreme  and  national,  there  is  no 
more  danger  of  proper  bounds  being  exceeded  than  has 
ever  existed  in  the  past ;  on  this  point  we  have  the  author- 
ity of  Chief  Justice  Marshall  and  Mr.  Justice  Story  that 
the  doctrine  of  limitations  ah  inconvenienti,  or  the  limita- 
tion of  a  general  power  for  fear  that  the  right  to  exercise 
it  may  lead  to  abuse,  will  not  be  considered.^  The  princi- 
ples of  broad  construction  of  the  Constitution  as  to  the  dele- 
gated powers  conveyed  in  general  terras  must  apply  with 
equal,  if  not  stronger  force,  to  those  powers  which  Congress 
possesses  in  its  capacity  as  the  single  mouth-piece  of,  and  the 
only  medium  through  which,  the  people  of  the  United  States 
can  speak  and  act  as  to  those  matters  which  they  possess  and 
control  as  a  national  unit. 

§  39.  rimdainental  priuciples  and  the  first  ten  amend- 
ments.— The  theiory  of  fundamental  principles  had  its  in- 
ception as  early  as  the  framing  of  the  Constitution  ;  to  many 
the  adoption  of  the  first  ten  amendments,  commonly  known 
as  the  Bill  of  Rights,  was  wholly  unnecessary ;  there  were 
members  of  the  Constitutional  Convention  who  considered 
that  the  enumeration  of  certain  fundamental  rights  would 
be  dangerous  as  it  might  result  in  the  exclusion,  and  to  the 
derogation,  of  other  rights  equally  fundamental,  but  which 
might  possibly  be  omitted  in  the  enumeration.  The  first 
ten  amendments,  however,  were  added  in  order  to  satisfy 
the  wishes  of  those  who  felt  that  the  personal  rights  of  free- 
dom and  liberty  therein  enumerated  should  be  specifically 
preserved  to  the  people. 

It  is  doubtful,  however,  if  any  one  in  this  country  con- 
siders that  his  personal  rights  have  any  greater  protection 
by  reason  of  the  adoption  of  those  amendments,  than  though 
they  had  remained  as  a  part  of  the  fundamental  principles, 
upon  which  the  whole  government  was  based,  and  unex- 
pressed except  as  they  are  embodied  in  the  law  of  the  land 
and  as  they  have  always  been  recognized  by  the  people  and 
by  the  courts. 


2"  A  power,  given  in  general 
terms,  is  not  to  be  restricted  to 
particular  cases  merely  because  it 
may  be  susceptible  of  abuse,  and 

5  65 


if  abused  may  lead  to  mischievous 
consequences."  1  Story's  Comm. 
on  the  Const.  §  425,  5th  ed.  p.  324. 


§39 


teeaty-jMakinct  power  of  the  u.  s. 


[CH.  I. 


The  histoiy  of  these  amendments,  as  it  is  contained  in 
Story's  Commentaries,  will  be  found  in  the  footnote  to  this 
section.^  * 

♦For  the  Constitution  and  Amendments  in  fuU  see  pp.  519,  et  seq.,  post. 


§39. 

1"  Another  class  of  objections 
urged  against  the  Constitution  was 
founded  upon  its  deficiencies  and 
omissions.  It  cannot  be  denied 
that  some  of  the  objections  on  this 
head  were  well  taken,  and  that 
there  was  a  fitness  in  incorporating 
some  provision  on  the  subject  into 
the  fundamental  articles  of  a  free 
government.  There  were  others, 
again,  which  might  fairly  enough 
be  left  to  the  legislative  discretion 
and  to  the  natural  influences  of 
the  popular  voice  in  a  republican 
form  of  government.  There  were 
others,  again,  so  doubtful,  both  in 
principle  and  policy,  that  they 
might  properly  be  excluded  from 
any  system  aiming  at  permanence 
in  its  securities  as  well  as  its  found- 
ations. 

"  Among  the  defects  which  were 
enumerated,  none  attracted  more 
attention,  or  were  urged  with  more 
zeal,  than  the  want  of  a  distinct 
bill  of  rights  which  should  recog- 
nize the  fundamental  principles  of 
a  free  republican  government,  and 
the  right  of  the  people  to  the  en- 
joyment of  life,  liberty,  property, 
and  the  pursuit  of  happiness.  It 
was  contended  that  it  was  indis- 
pensable that  express  provision 
should  be  made  for  the  trial  by 
jury  in  civil  cases,  and  in  criminal 
cases  upon  a  presentment  by  a 
grand  jury  only;  and  that  all  crim- 
inal trials  should  be  public,  and 
the  party  be  confronted  with  the 
witnesses  against  him;  that  free- 
dom of  speech  and  freedom  of  the 
press  should  be  secured ;  that  there 
should  be  no  national  religion,  and 

66 


the  rights  of  conscience  should  be 
inviolable;  that  excessive  bail 
should  not  be  required,  nor  cruel 
and  unusual  punishments  inflicted; 
that  the  people  should  have  a  right 
to  bear  arms;  that  persons  con- 
scientiously scrupulous  should  not 
be  comi^elled  to  bear  arms;  that 
every  person  should  be  entitled  of 
riglit  to  petition  for  the  redress  of 
grievances;  that  search-warrants 
should  not  be  granted  without  oath, 
nor  general  warrants  at  all ;  that 
soldiers  should  not  be  enlisted,  ex- 
cept for  a  short,  limited  terra,  and 
not  be  quartered  in  time  of  peace 
upon  private  houses  without  the 
consent  of  the  owners;  that  mutiny 
bills  should  continue  in  force  for 
two  years  only;  that  causes  once 
tried  by  a  jury  should  not  be  re- 
examinable  upon  appeal,  otherwise 
than  according  to  the  course  of  the 
common  law;  and  that  the  powers 
not  expressly  delegated  to  the  gen- 
eral government  should  be  declared 
to  be  reserved  to  the  States.  In  all 
these  particulars  the  Constitution 
was  obviously  defective;  and  yet, 
it  was  contended,  they  were  vital 
to  the  public  security. 

"  Besides  these,  there  were  other 
defects  relied  on,  such  as  the  want 
of  a  suitable  provision  for  a  rota- 
tion in  office,  to  prevent  persons 
enjoying  it  for  life;  the  want  of  an 
executive  council  for  the  Presi- 
dent; the  want  of  a  provision  lim- 
iting the  duration  of  standing 
armies;  the  want  of  a  clause  secur- 
ing to  the  people  the  enjoyment 
of  the  common  law;  the  want  of 
security  for  proper  elections  of 
public  officers;  the  want  of  a  pro- 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  IJ.  S. 


40 


§  40.  Congress  compared,  as  to  powers  in  national  mat- 
ters, with  Parliament  of  Great  Britain. — To  the  author,  it 
seems  as  though  Congress,  being  the  only  medium  of  action 


hibition  of  members  of  Congress 
holding  any  public  offices,  and  of 
judges  holding  any  other  offices; 
and  finally,  the  want  of  drawing  a 
clear  and  direct  line  between  the 
powers  to  be  exercised  by  Congress 
and  by  the  States. 

"  Many  of  these  objections  found 
their  way  into  the  amendments, 
which,  simultaneously  with  the 
ratification,  were  adopted  in  many 
of  the  State  conventions.  With  the 
view  of  carrying  into  effect  popular 
will,  and  also  of  disarming  the  op- 
poneats  of  the  Constitution  of  all 
reasonable  grounds  of  comjjlaint, 
Congress,  at  its  very  first  session, 
took  into  consideration  the  amend- 
ments so  proposed;  and  by  a  suc- 
cession of  supplementary  articles 
provided,  in  substance,  a  bill  of 
rights  and  secured  by  constitutional 
declarations  most  of  the  other  im- 
portant objects  thus  suggested. 
These  articles  (in  all  twelve)  were 
submitted  by  Congress  to  the  States 
for  their  ratification,  and  ten  of 
them  were  finally  ratified  by  the 
requisite  number  of  States,  and  thus 
became  incorporated  into  the  Con- 
stitution. It  is  a  curious  fact,  how- 
ever, that,  although  the  necessity 
of  these  amendments  had  been 
urged  by  tiie  enemies  of  tlie  Con- 
stitution and  denied  by  its  friends, 
they  encountered  scarcely  any 
other  opposition  in  the  state  legis- 
latures than  what  was  given  by  the 
very  party  which  had  raised  the 
objections.  The  friends  of  the  Con- 
stitution generally  supported  them 
upon  the  ground  of  a  large  public 
policy,  to  quiet  jealousies  and  to 
disarm  resentments. 

"  It  is  perhaps  due  to  the  latter  to 


state  that  they  believed  that  some 
of  the  objections  to  the  Constitution 
existed  only  in  imagination,  and 
that  others  derived  their  sole  sup- 
port from  an  erroneous  construc- 
tion of  that  instrument.  In  respect 
to  a  bill  of  rights,  it  was  stated  that 
several  of  the  State  constitutions 
contained  none  in  form,  and  yet 
were  not  on  that  account  thought 
objectionable.  That  it  was  not 
true  that  the  Constitution  of  the 
United  States  did  not,  in  the  true 
sense  of  the  terms,  contain  a  bill 
of  rights.  It  was  emphatically 
found  in  those  clauses  which  re- 
spected political  rights,  the  guar- 
anty of  republican  forms  of  gov- 
ernment, the  trial  of  crimes  by  jury, 
the  definition  of  treason,  the  pro- 
hibition against  bills  of  attainder 
and  ex  post  facto  laws  and  titles  of 
nobility,  the  trial  by  impeachment, 
and  the  privilege  of  the  writ  of 
habeas  corims.  That  a  general  bill 
of  rights  would  be  improper  in  a 
Constitution  of  limited  powers  like 
that  of  the  United  States,  and 
might  even  be  dangerous,  as  by 
containing  exceptions  from  powers 
not  granted  it  might  give  rise  to 
implications  of  constructive  power. 
That  in  a  government  like  ours, 
founded  by  the  people  and  man- 
aged by  the  people,  and  especially 
in  one  of  limited  authority,  there 
was  no  necessity  of  any  bill  of 
rights;  for  all  powers  not  granted 
were  reserved,  and  even  those 
granted  might  at  will  be  i-esumed 
or  altered  by  the  people.  That  a 
bill  of  rights  might  be  fit  in  a  mon- 
archy, where  tliere  were  struggles 
between  the  crown  and  tlio  ])eoplo 
about  prerogatives  and  privileges. 

67 


§40 


TKEATY-aiAKING  POWER  OF  THE  U.  S. 


[CH.  I. 


in  those  respects,  must,  as  to  national  matters  committed  to 
it,  possess  powers  co-ordinate  with  those  of  the  Parliament 
of  Great  Britain,  and  that  the  possession  of  such  powers  can- 
not in  any  way  tend  to  produce  the  dangerous  results  pre- 
dicted by  Mr.  Harrison. 

It  is  England's  boast  that  the  Anglo-Saxon  heritage  of 
personal  freedom  is  nowhere  so  thoroughl}^  protected  as  it  is 
in  Great  Britain  ;  there  are,  however,  no  written  limitations 
upon  Pai'liamentary  action  of  any  kind — in  fact,  Parliament, 
being  the  mouthpiece  of  the  people,  is  necessarily  supreme. 
The  notes  to  section  11  of  this  chapter  show  that  the  sov- 
ereignty of  the  British  Constitution  is  lodged,  as  declared 
by  Blackstone,  in  ParHament;  Professor  Cliase's  note  on 
this  statement  in  his  American  edition  of  Blackstone's  Com- 
mentaries, which  is  appended  to  this  section,  show^s  the  dif- 
ference between  an  act  of  Congress  and  an  act  of  Parlia- 
ment as  to  matters  which  are  covered  by  the  Constitution ;  ^ 


But  here  tlie  government  is  the 
government  of  the  people;  all  its 
officers  are  their  officers,  and  they 
can  exercise  no  right  or  powers  but 
such  as  the  people  commit  to  them. 
In  such  a  case  the  silence  of  the  Con- 
stitution argues  nothing.  The  trial 
by  jury,  the  freedom  of  the  press, 
and  tlie  liberty  of  conscience  are 
not  taken  away,  because  they  are 
not  secured.  They  remain  with 
the  people  among  the  mass  of  un- 
granted  poweis,  or  find  an  appro- 
priate place  in  the  laws  and  insti- 
tutions of  each  particular  State. 

"Notwithstanding  the  force  of 
these  suggestions,  candor  will  com- 
pel us  to  admit  that,  as  certain 
fundamental  rights  were  secured 
by  the  Constitution,  there  seemed 
to  be  an  equal  propriety  in  secur- 
ing in  like  manner  others  of  equal 
value  and  importance.  The  trial 
by  jury  in  criminal  cases  was  se- 
cured; but  this  clause  admitted  of 
more  clear  definition  and  of  auxil- 
iary provisions.  The  trial  by  jury 
in  civil  cases  at  common  law  was 

68 


as  dear  to  the  people,  and  afforded 
at  least  an  equal  protection  to  per- 
sons and  property.  The  same  re- 
mark may  be  made  of  several  other 
provisions  included  in  the  amend- 
ments. But  these  will  more  prop- 
erly fall  under  consideration  in  our 
commentary  upon  that  portion  of 
the  Constitution.  The  prompti- 
tude, zeal  and  liberality  with  which 
the  friends  of  the  Constitution  sup- 
ported these  amendments  evince 
the  good  faith  and  sincerity  of 
their  opinions,  and  increase  our 
reverence  for  their  labors,  as  well 
as  our  sense  of  their  wisdom  and 
patriotism."  1  Story's  Com.  on 
the  Cons,  of  the  U.  S.  5th  ed.  §§  300 
-305,  pp.  217-220. 

See  also  Thorpe's  Constitutional 
History  of  the  United  States,  vol.  2, 
chap.  VI,  p.  199,  el  seq. 

§40. 

1 "  There  is  a  fundamental  differ- 
ence between  the  power  and  author- 
ity of  the  legislative  branch  of  the 
Government  in  England  and  in  the 
United  States.     The  English  Par- 


CH.  I.]    NATIONALITY  AND  SOVEREIGNTY  OF  THE  U.  S.     §  41 


the  same  difference  cannot  exist,  however,  as  to  matters  which 
are  lodged  generally  in  the  National  Government  or  which  it 
possesses  not  by  delegation  but  as  the  attributes  of  sover- 
eignty of  a  national  government.  Blackstone,  however,  and 
other  writers  upon  the  fundamental  law  of  England,  trace  the 
British  Constitution,  unwritten  as  it  is,  from  the  earliest 
sources,  showing  that  personal  liberty  and  personal  rights 
are  amply  protected  from  legislative  aggression,  and  that  no 
person  can  be  deprived  of  them  in  any  manner  whatsoever. 
Undoubtedly  the  Supreme  Court  of  the  United  States  can  be 
entrusted  with  the  protection  of  personal  rights  of  Ameri- 
cans, and  of  the  inhabitants  of  any  territory  under  the  juris- 
diction of  the  United  States,  to  the  same  extent  that  the  Eng- 
lish courts  can  be  trusted  with  the  similar  protection  of  citi- 
zens and  subjects  of  Great  Britain. 

§  41.  Simultaneous  developuieut  of  nationality  and  limi- 
tations by  fundamental  principles  of  natural  and  healthy 
growth. — The  simultaneous  development  of  the  two  theories 
of  complete  nationality  and  sovereignty,  and  of  the  limita- 
tion of  congressional  action  in  regard  to  national  matters  by 


liament  is  not  limited,  as  regards 
the  scope  and  extent  and  subject- 
matter  of  legislation,  by  a  written 
constitution  defining  and  restrict- 
ing its  powers,  and  its  enactments 
therefore  constitute  the  supreme 
law  of  the  land  and  are  absolutely 
binding  upon  the  courts,  which 
have  no  option  but  to  appropriately 
enforce  them.  It  is  for  this  reason 
that  Parliament  is  sometimes  said 
to  be  "omnipotent."  What  is 
spoken  of  as  the  "  English  Consti- 
tution "  embraces  the  body  or  sys- 
tem of  laws,  rules,  principles  and 
established  usages,  upon  which  is 
based  the  organization  of  the  Gov- 
ernment, the  relation  of  its  various 
departments  or  branches  to  each 
other,  and  the  nature  of  their  func- 
tions, and  in  accordance  with 
which  the  administration  of  the 
Government  is  regularly  conducted. 
But  this  Constitution,  based  as  it 


is  upon  previous  acts  of  Parlia- 
ment, upon  custom  and  tradition, 
is  subject  to  change  and  modifica- 
tion by  other  acts  of  Parliament, 
though  it  is  undoubtedly  true,  that 
It  has,  by  force  of  precedent,  and 
by  the  natural  effect  of  ordinary 
usage  upon  the  habits  and  ideas 
of  people,  great  controlling  and  re- 
strictive power  upon  the  course  of 
legislation.  But  in  the  United 
States,  legislation  is  uniformly  con- 
trolled by  written  constitutions 
adopted  by  the  people  in  their 
sovereign  capacity.  The  United 
States  Constitution  limits  and  de- 
fines the  powers  of  Congress,  and 
is  also  binding  upon  the  legisla- 
tures of  the  several  States,  so  that 
their  enactments  cannot  violate  its 
provisions.  The  legislation  of  the 
States  is  also  further  controlled  by 
the  special  Constitution  which  each 
has  adopted.    To  the  courts  is  com- 

69 


§41 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  I. 


fundamental  principles,  has  up  to  the  present  time  inured  to 
the  advantage  and  mutual  benefit  alike  of  the  powers  that 
govern,  and  of  the  people  who  are  governed  ;  this  same  de- 
velopment will  undoubtedly  continue  in  the  spirit  of  Anglo- 
Saxon  liberty  without  danger  to  the  personal  rights  of  indi- 
viduals, or  the  enactment  of  any  such  grotesque  legislation  as 
is  feared  by  the  ex-President ;  in  this  respect  it  must  be  re- 
membered tliat  the  combined  action  of  the  three  departments 
of  the  American  Government  is  always  subject  to  the  control 
of  the  people  by  the  frequent  recurrence  of  elections  ;  the  re- 
vei'sal  or  repeal  of  congressional  action  alwa3"s  follows  when 
it  appears  that  the  legislation  enacted  is  not  in  accord  with  the 
spirit  of  liberty  as  it  is  understood  by  the  people,  who  must 
eventually  be  the  sole  judges  as  to  whether  or  not  the  powers 
of  sovereignty  lodged  in  the  National  Government,  great  as 
they  are,  are  being  properl  v  exercised.  ISTot  until  the  spirit 
of  the  people  changes  can  Congress  act  with  the  sj)irit  of  des- 
potism. If,  however,  the  minds  of  the  American  people  can 
ever  become  so  perverted  as  to  favor  despotism  in  any  form, 
that  degeneracy  will  be  reflected  in  Congress,  and  no  consti- 
tutional provisions,  or  fundamental  principles  of  liberty,  will 
sufiice  to  prevent  the  enactment  of  legislation  which  will  ac- 
cord with  the  popular  sentiment  as  to  those  matters  which 
are  wholly  within  the  domain  of  the  National  Government, 
and  therefore  under  the  control  of  the  people  themselves. 

No  such  danger  exists  to-day ;  let  us  hope  that  it  never 
will  exist. 


mitted  the  power  and  duty  of  de- 
termining whether  particular  en- 
actments are  in  conformity  with 
Constitutional  provisions;  and  if  it 
is  adjudged  that  they  are  not,  such 
laws  are  pronounced  null  and  void, 
either  in  whole  or  in  part  (Civil 
Rights  cases,  109  U.  S.  3;  Baldwin 
vs.  Franks,  120  U.  S.  678;  Duryee  vs. 
Mayor  ofN.  Y.  96  K  Y.  477).  This 
is  not,  however,  done  by  the  courts 
of  their  own  motion,  but  only  in  the 

70 


course  of  decision  of  actually  liti- 
gated causes  in  which  the  Cousti- 
tutiunality  of  the  statute  is  essen- 
tially involved.  But  all  statutes 
not  in  conflict  with  the  provisions 
of  the  Constitution  of  the  State  or 
of  the  United  States  are  as  supreme 
and  absolute,  within  their  appro- 
priate sphere,  as  the  acts  of  the  Eng- 
lish Parliament."  Chase's  Black- 
stone  {3d  ed.),  p.  15,  note. 


CHAPTER  II. 


THE  NATIONALITY  AND    SOVEKEIUNTY  OF    THE    UNITED  STATES  AS 
EVIDENCED  BY  ACQUISITION  OF  TERRITORY. 


Section 

42 — Development  of  United 
States  from  a  Confedera- 
tion into  a  Nation;  recog- 
nition of  Sovereignty. 

43 — Right  of  sovereign  powers  to 
acquire  territory. 

44 — Methods  of  acquisition  of 
territory. 

45 — Cessions  of  territory  to 
povrers  other  than  United 
States. 

46 — Consent  of  governed  not  re- 
quired under  international 
law. 

47 — The  United  States  has  never 
asked  the  consent  of  the 
inhabitants  of  ceded  terri- 
tory. 

48 — Impracticability  of  ascer- 
taining consent. 

49 — Special  instances  in  which 
obtaining  consent  might  be 
practicable. 

50 — Restrictions  on  acquisitions 
of  territory  by  European 
powers  under  "  balance  of 
power  "  theory. 

51 — Acquisitions  of  United  States 
never  objected  to  by  other 
powers. 

52 — Acquisitions  of  European 
powers  prevented  by  Uni- 
ted States  under  Monroe 
Doctrine. 

53 — Russia's  colonization  on  Pa- 
cific coast  stopped. 

54 — England,  Central  and  South 
America,  and  the  Monroe 
Doctrine. 


Section 

55 — Spain,  Cuba,  and  the  Monroe 
Doctrine. 

56 — Louis  Napoleon,  Mexico,  and 
the  Monroe  Doctrine. 

57 — Germany  and  Samoa. 

58 — Monroe  Doctrine  and  the 
Peace  Conference  at  The 
Hague;  1899. 

59 — Opposition  to  territorial  ex- 
pansion from  within,  and 
not  from  without. 

60 — Right  to  acquire  territory 
based  on  nationality  and 
sovereignty. 

61 — Power  to  govern  acquired 
territory.  The  Insular 
cases;  1901. 

61a-7t — Status  of  new  possessions. 

62 — The  Mormon  Church  case  ; 
Justice  Bradley's  opinion. 

63 — Subsequent  cases  involving 
same  point. 

64 — Constitutional  limitations; 
or  lim'.tations  by  funda- 
mental principles. 

65 — Justice  Harlan's  opinion. 

66 — General  Summary  of  views. 

67 — Government  of  territories  as 
affected  by  treaties  of  ces- 
sion. 

(J8 — Special  clauses  in  treaty  with 
Spain  of  1898. 

69 — States'  rights  and  anti-ex- 
pansion. 

70 — Policy  of  expansion  and  ac- 
quisition sustained  by 
courts  and  people. 

71 — Territorial  expansion  the 
Cornerstone  of   American 


prosperity. 


71 


§  43  TKEATY-MAKING  POWER  OF  THE  U.  S.         [CH.  II. 

§  42.  Development  of  United  States  from  a  Confedera- 
tion into  a  Nation  ;  recognition  of  Sovereignty.^We  Lave 
already  seen,  in  the  last  chapter,  that  the  Government  of  the 
United  States  has  developed  from  the  mere  central  gov- 
ernment of  a  confederation  into  a  great  national  government 
possessing  and  exercising,  as  to  all  national  matters,  every 
sovereign  power  which  any  other  sovereign  nation  of  the 
world  possesses  and  exercises ;  also  that  this  nationalitj^  and 
sovereignty  has  been  recognized  by  our  own  people  and  our 
own  courts.  It  is  purposed  in  this  and  the  succeeding  chap- 
ter to  show  that  these  attributes  of  sovereignty  and  nation- 
alty  have  been  exercised  in  adding  to  our  domain  vast  tracts 
of  territory,  over  which  the  Government  of  the  United  States 
has  extended  in  its  national  and  sovereign  capacities,  and 
also  that  the  nationality  and  sovereignty  of  the  United 
States  have  been  continuously  recognized  b}'  every  other 
sovereign  nation. 

§  43.  Right  of  sovereign  powers  to  acqnire  territory. — 
The  right  of  sovereign  powers  to  cede  territory  to,  and  to 
acquire  territory  from,  other  sovereign  powers,  with  the  ac- 
companying transfer  of  sovereignty  thereover,  is  one  of  the 
elementary  principles  of  international  law.  It  is  essential, 
however,  that  the  contracting  powers  should  be  fully  sover- 
eign in  order  to  act  either  as  transferrer  or  transferee.^ 

§43. 

1  TRANSFER  OF  TERRITORY;  VIEWS  OF  PtjBLICISTS. 

PROFESSOR    POMEROY. 

"  It  may  be  laid  down  as  an  universal  doctrine  of  the  international  law, 
that  every  sovereign  independent  state  may  transfer  or  acquire  terri- 
torial or  other  possessions.  I  say  this  is  a  doctrine  of  the  inleraational 
law,  which  does  not  concern  itself  with  the  internal  organization  of 
countries,  and  the  powers  committed  to  governments,  or  to  any  depart- 
ments thereof.  Whether,  therefore,  any  particular  nation  may  transfer 
its  territory  or  acquire  territory  from  another  is  a  question  to  be  answered 
by  examining  the  constitution  of  thit  country,  the  functions  and  capac- 
ties  conferred  upon  its  rulers.  Tiiis  belongs  entirely  to  public  and  not 
to  international  law.  The  same  is  true  of  the  subordinate  inquiry,  what 
department  of  a  government  may  eifect  the  transfer  or  receive  the  ac- 
quisition? Whether  the  king  or  other  executive,  the  legislature,  or  the 
people  assenting  and  ratifying  the  acts  of  their  governmental  agents. 
We  are  not  called  upon  to  discuss  this  subject;  and  altliou^h  Vattel  de- 
votes a  large  space  in  his  treatise  to  its  consideration,  he  has  therein 

72 


CH.  II.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  43 

A  government  that  is  not  full}-  sovereign  has  no  right  to 
extend  its  territorial  possessions,  and  conversely  one  that 

plainly  departed  from  the  legitimate  scope  of  a  writer  upon  international 
law. 

"Sec.  116.  To  illustrate  these  statements:  Whether  the  United  States 
may  acquire  new  territory  by  gift,  purchase,  or  cession  from  another 
country,  must  be  determined  by  the  Constitution,  and  the  powers  of 
the  general  government  erected  by  that  organic  law.  The  Constitu- 
tion itself  is  silent  upon  this  particular  topic;  yet  the  power  has  been 
exercised  several  times:  in  the  purchase  of  Louisiana  and  of  Florida, 
the  annexation  of  Texas,  and  the  cession  of  California  and  New  Mexico. 
The  people  have  acquiesced,  although  Jefferson  thought  it  needed  a 
constitutional  amendment  to  ratify  his  act  in  acquiring  Louisiana. 
But  whether  the  United  States  may  transfer  any  of  its  territory,  so  as  to 
cede  away  its  paramount  dominion  therein,  is  an  entirely  different  ques- 
tion, which  has  never,  thus  far  in  our  history,  been  raised  or  discussed. 

"Sec.  117.  By  Grotius  and  the  earlier  writers  upon  public  law  king- 
doms were  divided  into  patrimonial  or  proprietary  and  usufructuary. 
Tlie  patrimcmial,  as  it  were,  belonged  to  the  monarch  as  a  kind  of  private 
domain  which  he  might  alienate  or  dispose  of  at  will.  The  usufructuary 
included  all  others,  in  which  the  rulers  were  looked  upon  as  the  repre- 
sentatives of  a  body  politic  behind  them,  and  not  as  themselves  consti- 
tuting tlie  state.  Whatever  miglit  have  been  true  in  earlier  times,  it  is 
certain  that  there  is  no  such  jjatrimonial  kingdom  or  nation  at  the  pres- 
ent day  in  Europe,  and  of  course  not  in  America. 

"Tiie  general  proposition  of  the  international  law,  therefore,  is,  that 
by  its  proper,  constituted  autliorities,  whatever  they  may  be, — king, 
president,  legislature,  people, — a  nation  may  alienate  to,  or  acquire  from, 
another  nation,  territory  or  other  things  which  are  the  objects  of  prop- 
erty. '  It  is,  moreover,  of  the  last  importance  to  remember  that  a  nation 
which  allows  its  ruler,  either  in  his  own  person  or  through  his  minister, 
to  enter  into  negotiations  respecting  the  alienation  of  property  with 
other  nations,  must  be  held  to  liave  consented  to  the  act  of  the  ruler; 
unless,  indeed,  it  can  be  clearly  proved  that  the  other  contracting  party 
was  aware  at  the  time  that  tlie  ruler  in  so  doing  was  transgressing  the 
fundamental  laws  of  liis  state.'  "  Pomeroy's  International  Law,  edited 
by  Theodore  S.  Woolsey,  pp.  132-134. 

GENERAL,  HALLECK'S  VIEWS. 

"Sec.  6.  Right  of  a  State  to  own  property.  A  state  being  regarded 
in  public  law  as  a  body  politic,  or  distinct  moral  being,  naturally  sov- 
ereign and  independent,  it  is  considered  as  capable  of  the  same  rights, 
duties  and  obligations,  with  respect  to  other  States,  as  individuals  with 
respect  to  other  individuals.  Among  the  most  important  of  these  nat- 
ural rights  is  that  of  acquiring,  possessing,  and  enjoying  pi'operty.  And 
this  right  applies  not  only  to  property  of  the  State,  as  exclusive  of  other 
States,  but  to  such  property  as  exclusive  of  individuals.  But  interna- 
tional law  generally  considers  only  the  former  kind  of  property,  or  in- 

73 


§  43  TREATY-aiAKING  POWEJR  OF  THE  U.  S.  [CH.  II. 

cannot  extend  them  does  not  possess  the  full  measure  of  sov- 
ereignty.    It  is  subject,  by  some  limitation,  to  some  other 

ternational  domain.  When,  however,  we  consider  the  rights  of  conquest 
and  cession,  the  rights  of  maritime  capture  and  of  capture  on  land,  it 
becomes  necessary  to  consider  the  interior  or  municipal  rights  of  prop- 
erty in  the  State,  and  to  distinguish  between  the  absolute  and  para- 
mount rights  of  the  State,  in  respect  to  property  considered  in  its  in- 
terior relations  under  municipal  laws,  rather  than  its  exterior  relations 
under  international  laws.  As  a  general  rule,  the  property  of  a  State,  of 
whatsoever  description,  is  marked  by  the  same  characteristics  relatively 
to  other  States,  as  the  property  of  individuals,  relatively  to  other  indi- 
viduals ;  that  is  to  say,  '  it  is  exclusive  of  foreign  interference,  and  sus- 
ceptible of  free  disposition.' 

"Sec.  7.  Modes  of  acquisition.  A  State  may  acquire  property  or  do- 
main in  various  ways  :  its  title  may  be  acquired  originally  by  mere  oc- 
cupancy and  confirmed  by  the  presumption  arising  from  the  lapse  of 
time  ;  or  by  discovery  and  lawful  possession  ;  or  by  conquest,  confirmed 
by  treaty  or  tacit  consent  ;  or  by  grants,  cession,  purchase,  or  exchange; 
in  fine,  by  any  of  the  recognized  modes  by  which  private  property  is 
acquired  by  individuals.  It  is  not  our  object  to  enter  into  any  general 
discussion  of  these  several  modes  of  acquisition,  any  further  than  may 
be  necessary  to  distinguish  the  character  of  certain  rights  of  property 
which  are  the  peculiar  objects  of  international  jurisjirudence. 

"  Sec.  8.  Right  of  disposition  of  territory.  A  sovereign  State  has  the 
same  absolute  right  to  dispose  of  its  territorial  or  other  public  property 
as  it  has  to  acquire  such  property,  but  it  depends  upon  its  own  munici- 
pal constitution  and  laws  how,  and  by  what  department  of  its  govern- 
ment, the  disposition  shall  be  made.  This  is  sometimes  a  question  of 
peculiar  interest  to  foreign  States,  who  may  acquire  such  property  by 
purchase,  exchange,  cession,  conquest,  and  treaties  of  confirmation  and 
especially  where  such  acquisitions  are  made  from  States  continually 
subject  to  revolutions  and  fiuctuations  in  the  character  of  its  govern- 
ment and  in  the  powers  of  its  rulers.  The  act  of  a  government  dr  facto, 
a  government  which  is  submitted  by  the  great  body  of  the  people,  and 
recognized  by  other  States,  is  binding  as  the  act  of  the  State  ;  and  it  is 
not  necessary  for  others  to  examine  into  the  origin,  nature,  and  limits 
of  that  authority.  If  it  is  an  authority  de  facto,  and  sufficieiit  for  the 
purpose,  others  will  not  inquire  how  that  authority  was  obtained. 

"Sec.  9.  Authority  to  make  a  valid  transfer.  Nevertheless,  in  order 
to  make  such  ti-ansfer  valid,  the  authority,  whether  de  facto  or  dejure, 
must  be  competent  to  bind  the  State.  Hence  the  necessity  of  examin- 
ing into  and  ascertaining  the  powei'S  of  the  rulers,  as  the  municipal 
constitutions  of  different  States  throw  many  difficulties  in  the  way  of 
alienations  of  their  public  property,  and  particularly  of  their  territory. 
Especially,  in  modern  times,  the  consent  of  the  governed,  express  or  im- 
plied, is  necessary,  before  the  transfer  of  their  allegiance  can  regularly 
take  place.  But  formerly,  what  Grotius  crWs  patrimonial  kingdoms  were 
considered  in  the  light  of  absolute  property  of  particular  families,  who, 

74 


CH.  II.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  43 

power,  which  must  be  superior  to  it  in  that  respect ;  when 
any  government  is  in  that  condition  owing  to  any  cause  what- 

having  received  the  blind  submission  of  their  subjects,  sold  and  bartered 
them  away,  like  any  other  property  which  they  possessed.  And  such 
transfers  of  sovereignty  included,  not  only  the  right  of  eminent  domain 
and  the  absolute  piojierty  of  the  sovereign  or  State,  but  all  private  lands, 
and  the  property,  and  services  of  the  subjects,  who  were  transferred 
with  the  soil,  in  the  same  manner  as  a  slaveholder  may  transfer  his 
slaves  and  all  they  possess,  together  with  the  title  to  his  plantation. 

"Sec.  10.  Patrimonial  kingdoms.  There  are  numerous  examples  of 
such  treaties  of  sale.  In  1301,  Theodoric,  Landgrave  of  Thuringia,  sold 
the  Marquisate  of  Lusatia  to  Burchard,  Archbishop  of  Magdeburg,  for 
600  marks  of  silver — 'm  super  cum  ministeriulibus  vassalis  et  mancipiis, 
et  aliis  hominibus,  ciijuscumque  conditionis  in  jam  dicta  terra  commoran- 
tibus,^  etc.  In  the  same  manner,  in  1311,  Dantzic,  Derschovia  and 
Swiecae  were  sold  by  the  Margrave  of  Brandenburg  to  the  Grand  Master 
of  the  Teutonic  Order,  for  10,000  marks.  In  1333,  the  city  and  territory 
of  Mechlin,  was  transferred  for  one  hundred  thousand  reals  of  gold,  by 
a  treaty  of  sale  between  its  Sovereign  and  the  Eai-1  of  Flanders,  the  fealty 
being  reserved.  About  the  same  time  the  city  and  county  of  Lucques 
were  sold  by  John  of  Luxemburg  to  Pliilip  of  Yalois,  for  180,000  florins; 
and  a  few  years  after,  the  sovereignty  of  Frankenstein  was  sold  by  the 
Duke  of  Silesia,  for  2,000  marks,  to  the  King  of  Bohemia.  The  sov- 
ereignty which  the  Popes  so  long  held  over  Avignon  was  purchased  by 
Clement  VI.,  for  80,000  florins,  from  Jane,  Queen  of  Naples  and  Count- 
ess of  Provence.  Alaska  was  purchased  from  Russia  by  the  United 
States,  by  treaty  of  March  13,  1867. 

"  Sec.  11.  Inhabitants  of  such  kingdoms.  The  practice  also  extended 
to  the  mortgaging  of  sovereignties,  and  the  sales  of  reversionary  inter- 
ests in  kingdoms.  Thus,  Robert,  Duke  of  Normandy,  in  order  to  raise 
money  to  engage  in  the  first  crusade,  mortgaged  his  duchy  for  666  lbs. 
weight  of  silver  to  his  brother  William,  and  transferred  the  possession 
before  his  departure  for  the  Holy  Land.  In  1479,  Louis  XL  bought  the 
right  of  the  house  of  Penthievre,  the  next  male  heir  in  reversion,  to 
Brittany.  And  fifteen  years  later  Charles  VIII.  purchased,  for  an  an- 
nual pension  of  4,300  ducats,  an  estate  of  5,000  in  lands  in  France  or 
Italy,  and  the  disposition  of  the  Morea  (when  conquered  ),  of  Paleologus, 
the  nephew  of  Constantine,  the  last  Christian  Emperor,  his  right  to  the 
whole  Empire  of  Constantinople.  The  act  of  sale  being  drawn  up  by 
two  notaries,  and  ratified,  Charles  assumed  the  robes,  and  ornaments  of 
the  imperial  dignity,  and  made  no  scruples  in  claiming  the  imperial 
rights  vested  in  him  by  virtue  of  this  purchase. 

"  Sec.  12.  Modern  Transfers.  It  was  also  the  custom  to  dispose  of 
sovereignties  and  dominions  by  deeds  of  gift,  and  by  bequests.  The 
Emperor  Lewis  V.  created  the  daupliin  Humbert  Icing,  with  the  full 
privilege  of  disposing  of  his  sovereignty  at  will,  during  life,  or  at  his 
death.  In  1343,  Humbert  ceded  his  dominions  to  Philip  of  Valois,  by 
solemn  deed  of  gift.     By  similar  deeds,  and  upon  a  like  principle,  the 

75 


§  43  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  II. 

ever,  it  must  acknowledge  that  it  lacks  complete  sovereignty, 

Emperor  Henry  YI.  conferred  upon  Richard  I.  the  kingdom  of  Aries, 
and  the  Emperor  Baldwin  gave  to  the  Duke  of  Burgundy  the  kingdom 
of  Thessalonia.  By  bequests,  not  only  were  whole  sovereignties  dis 
posed  of,  but  the  orders  of  succession  were  frequently  changed.  Thus 
Charles  II.,  King  of  Sicily  and  Count  of  Provence,  changed  by  will  the 
order  of  succession  to  the  county,  and  the  claims  of  Charles  VIII.  to  the 
throne  of  Naples  were  founded  upon  the  adoption  of  Louis  of  Anjou, 
by  Jane,  Queen  of  IS'aples,  1380,  which  was  evidenced  to  all  Europe  by 
a  solemn  and  public  deed.  In  1544  the  English  Parliament  declared  the 
succession  to  the  Crown,  but  omitted  to  make  any  arrangement  in  the 
case  of  failure  of  issue  of  the  children  of  Henry  VIII.  The  King,  by  his 
will,  named  the  descendants  of  his  sister  Mary,  Duchess  of  Suffolk,  as 
heirs  in  case  of  such  failure."  Halleck's  International  Law,  third  Lon- 
don ediiion,  vol.  1,  1893,  pp.  153—157. 

PKOFESSOK  LAWKENCE'S  VIEWS  ON  TITLE  BY  CESSION. 

"  Among  the  titles  it  is  possible  to  obtain  through  the  transfer  of  ter- 
ritories already  in  the  possession  of  civilized  states,  the  most  important 
is  title  by  cession. 

"  Cession  is  the  formal  handing  over  by  agreement  of  territorial  pos- 
sessions from  one  state  to  another.  The  agreement  is  embodied  in  a 
treaty  which  usually  contains  stipulations  as  to  the  transfer  along  with 
the  ceded  district  of  a  proportionate  share  of  the  public  debt  of  the  ced- 
ing state.  Moreover,  questions  connected  with  the  rights  of  citizenship 
of  its  inhabitants  and  rights  over  the  state  domains  within  it  are  usually 
settled  in  the  treaty;  but  no  general  rule  can  be  laid  down  as  to  these 
matters.  The  stipulations  respecting  them  will  vary  with  the  circum- 
stances of  eacli  case. 

"Since  cession  is  the  usual  method  whereby  changes  are  effected  in  the 
distribution  of  territory  among  states  which  are  subjects  of  Interna- 
tional Law,  it  follows  that  cessions  may  take  place  in  consequence  of 
transactions  of  various  kinds.  Of  these  we  will  consider  first  Sale.  It 
is  not  very  frequent;  but  cases  of  it  are  to  be  found  even  in  modern 
times,  as  wlien  in  1867  the  United  States  purchased  Russian  America 
for  $7,200,000.  The  next  ground  of  cession  is  Gift.  Free  gifts  of  terri- 
tory are  not  altogether  unknown,  though  as  a  rule  the  intercourse  of 
states  is  not  conducted  on  principles  of  lavish  generosity.  Yet  a  gov- 
ernment that  desired  for  special  purposes  to  retain  another's  good-will 
has  been  known  to  make  a  gift  of  territory  by  treaty  of  cession.  Thus 
in  1762,  France  ceded  to  Spain  the  colony  of  Louisiana,  in  order  to  in- 
demnify her  for  the  loss  of  Florida,  which  had  been  transferred  to  Eng- 
land by  the  Treaty  of  Paris;  and  in  1850  Great  Britain  ceded  to  the 
United  States  a  portion  of  the  Horseshoe  Reef  in  Lake  Erie,  in  order 
that  the  government  of  AVashington  might  erect  a  lighthouse  thereon. 
But  in  matters  of  transfer  of  territory  the  gift  is  far  more  often  forced 
than  free.  A  state  beaten  in  a  war  is  sometimes  obliged  to  make  over  a 
province  or  a  colony  to  the  victor  as  one  of  the  conditions  of  peace.     In- 

76 


CH.  II.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  43 

and  that  it  cannot  rank  among  the  great  and  independent 
powers  of  the  world.'-' 

Such  is  the  condition  of  every  State  of  this  Union,  No 
one  of  them  is  completely  sovereign,  because  the  people  have 
either  delegated  certain  elements  of  sovereignty  to  the  Cen- 
tral Government,  viewing  it  from  a  federal  standpoint,  or 
viewing  it  from  a  national  standpoint,  they  have  vested  the 
Central  Government  with  certain  elements  of  sovereignty  to 
the  exclusion  of  the  States.  One  of  the  elements  of  sover- 
eignty which  the  States  do  not  possess  is  this  right  of  acquisi- 
tion of  additional  territory.  No  one  of  them  can  extend  its 
borders  without  the  consent  of  the  Central  Government.^ 

Not  having  surrendered  any  of  its  fully  sovereign  powers, 
as  to  the  matters  wholly  within  its  own  domain,  the  United 
States  therefore  possesses,  in  common  with  every  other  sov- 
ereign power,  this  right  of  acquisition  of  territory  which,  in 
the  light  of  international  law  as  we  are  now  viewing  it, 
includes  the  right  to  acquire,  and  to  exercise  sovereignty 

deed,  most  cessions  are  the  results  of  warfare  and  come  under  the  head 
of  forced  gifts.  One  of  the  most  recent  instauces  is  to  be  fouud  in  the 
cession  of  Alsace  and  part  of  Lorraine  by  France  to  Germany.  This  was 
done  by  the  Treaty  of  Frankfort  of  1871,  and  was  one  of  the  results  of 
the  defeat  and  downfall  of  France  in  the  war  of  that  and  the  preceding 
year.  The  last  ground  of  cession  we  will  mention  is  Exchnw/e.  It  was 
common  enough  in  times  when  territories  were  cut  and  carved  in  order 
to  make  provision  for  the  scions  of  ruling  families,  but  the  growth  of 
the  principle  that  populations  should  have  a  voice  in  the  settlement  of 
their  political  destiny  has  made  it  comparatively  rare.  We  can,  how- 
ever, find  one  instance  in  recent  European  history.  By  the  Treaty  of 
Berlin  of  1878  Roumania  ceded  to  Russia  that  portion  of  Bessarabia  given 
to  it  at  Russia's  expense  in  the  Treaty  of  Paris  of  1856,  and  received  in 
exchange  the  Dobroutcha,  wliicii  was  taken  from  Turkey."  Lawrence's 
Principles  of  International  Law,  section  97,  pp.  156-157. 

See  also  Woolsey's  Int.  Law,  §53,  p.  62;  Hall's  Int.  Law,  §  7,  p.  45; 
Glenn's  Int.  Law,  §  37,  p.  49;  Philiimore's  Int.  Law,  vol.  1,  §§268-270, 
and  275;  Calvo's  Int.  Law,  vol.  1,§§  291-209. 


^^^  Semi- Sovereign  States  do  not 
possess  all  the  essential  rights  of 
sovereignty,  and  therefore,  can  be 
regarded  as  subjects  of  interna- 
tional law  only  indirectly,  or  at 
least  in  a  subordinate  degree." 
Halleck's  Int.  Law  (  Baker's  3d  Eng- 
lish Edition),  §  17,  p.  74,  Vol.  I. 


See  Hall's  Int.  Law,  p.  31 ;  Wool- 
sey's Int.  Law,  p.  35;  Glenn's  Int. 
Law,  §  9,  p.  17,  and  see  citations 
collected  in  footnote,  Glenn,  p.  17. 

3U.  S.  Const.  Art.  I.,  §  10  and  see 
§  19  of  this  volume,  ante. 


77 


§  44  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  II. 

over,  whatever  territory  it  may  desire  and  can  obtain  by  any 
method  recognized  by  international  law,  and  also  to  extend 
such  sovereignty  over  all  of  the  inhabitants  thereof.* 

§  44.  Methods  of  acquisition  of  Territory. — There  are 
various  ways  in  wliich  a  sovereign  power  may  increase  its 
territory  and  extend  its  sovereignty.  Those  recognized  b}"- 
international  law  (besides  accretion  by  the  acts  of  the  ele- 
ments) are  as  follows:  ^ 

I.  Discovery  and  Occupation. — The  original  title  to  all 
of  North  and  South  America  is  based  upon  this  method  of 
acquisition.  The  United  States  added  the  Oregon  district 
to  its  domain  by  the  discovery  of  the  mouth  of  the  Columbia 
River  by  Captain  Gray,  the  expedition  of  Lewis  and  Clarke, 
and  the  Astoria  settlement.  The  title  of  the  United  States 
to  the  Guano  and  Midway  Islands  also  rests  upon  discovery 
and  occupation. 

II.  Conquest. — The  right  of  the  victorious  nation  to  re- 
tain the  ownership  of  invaded  and  conquered  territory  is 
stiU  recognized  by  international  law.  Few  recent  titles  rest 
exclusively  upon  conquest,  however,  as  it  has  practically  be- 
come a  universal  custom  to  settle  ownership  of  territory  and 
boundary  lines  after  every  war  by  a  treaty ;  the  conquering 
power  generallv,  and  properh'^,  insists  upon  an  unequivocal 
cession  of  the  territory  which  it  accepts  as  indemnity,  or  re- 
tains as  conquered,  so  as  to  avoid  all  subsequent  questions  of 
ownership  and  sovereignty.  For  this  reason  it  is  sometimes 
difficult  to  determine  whether  territory  so  acquired  is  con- 
quered or  ceded  ;  this  applies  to  our  Mexican  territory  ac- 
quired in  1848,  as  well  as  to  our  latest  acquisitions.  In  both 
instances  we  held,  and  could  have  retained,  them  as  con- 
quered, but  we  obtained  cessions  thereof  in  the  treaties  of 
peace  concluded  on  terminating  the  wars. 


*  American  Ins.  Co.  vs.  Canter, 
U.  S.  Sup.  Ct.  1828,  1  Peters,  511, 
Marshall,  Ch.  J. 

Jones  vs.  United  States,  U.  S. 
Sup.  Ct.  1890,  137  U.  S.  202, 
Gray,  J. 


78 


§44. 

1  See  report  of  Charles  E.  Ma- 
goon,  law  officer,  Division  of  Insu- 
lar Affairs,  War  Department  Feb- 
ruary, 1890.  Senate  Document  234, 
56th  Congress,  1st  session,  for  the 
legal  aspects  of  the  territorial  ac- 
quisitions of  the  United  States. 


CH.  II.]  SOVEREIGNTY  AND  TERKITORIAL  ACQUISITION.  §  44 

III.  Cession  BY  ONE  Sovereign  Power  to  Another. — This 
may  be  either, 

a.  For  a  monetary  consideration,  without  the  element  of 
conquest  or  coercion,  as  was  the  case  when  we  purchased 
Louisiana  from  France  in  1803,  Florida  from  Spain  in  1810, 
Arizona  from  Mexico  in  1853,  and  Alaska  from  Russia  in 
1867. 

h.  By  exchange  of  territory,  which,  to  some  extent  was  an 
element  of  our  purchase  of  Florida,  when  Ave  ceded  to  Spain 
a  part  of  Texas,  which,  up  to  that  time,  we  had  claimed  was 
included  in  the  Louisiana  purchase. 

G.  At  the  end  of  a  war,  partly  for  indemnity  and  partly 
for  other  considerations,  as  was  the  case  when  Calit'ornia 
and  other  Mexican  territory  was  ceded  in  1848,  and  the  Phil- 
ippines; Porto  Rico  and  Guam  were  transferred  to  us  in  1898, 

d.  Without  any  consideration  except  good- will,  as  was  the 
case  when  Great  Britain  ceded  Horse  Shoe  Reef  in  Lake 
Erie  to  the  United  States  in  1850. 

IV.  By  Annexation,  when  Two  Governments  by  Treaty 
OR  Reciprocal  Legislation,  Unite  under  the  Government 
OF  One  or  the  Other. — This  was  the  case  when  Texas  was 
admitted  to  the  Union  as  a  State  and  surrendered  her  inde- 
pendent government  for  the  conditions  of  statehood  in  the 
United  States  in  1845,  and  also  when  Hawaii  became  a  part 
of  the  territory  of  the  United  States  under  congressional 
resolution  in  1898. 

The  title  of  the  present  domain  of  the  United  States,  there- 
fore, rests  upon  every  different  method  of  acquisition  known 
to  international  law,  but  as  to  every  portion  thereof  the  title 
is  clear  and  recognizable  by  that  law  as  well  as  by  our  own 
laws,  as  they  have  been  defined  and  construed  by  the  Su- 
preme Court.2 

2  NOTE  BY  AUTHOR  ON  ACQUISITIONS  OF  TERRITORY  BY 
UNITED  STATES. 

In  December,  1898,  immerliately  after  the  conclusion  of  the  Treaty  of 
Paris  between  the  United  States  and  Spain,  the  author  published  a 
pamphlet  entitled  "  Our  Treaty  with  Spain,"  in  which  the  various 
territorial  annexations  of  the  United  States  were  enumerated  as  fol- 
lows (The  treaty  volume  referred  to  is  the  edition  of  1889): 

The  right  of  the  United  States  to  acquire  territory  has  been  the  sub- 

79 


§  45  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  U. 

§  45.  Cessions  of  Territory  to  other  powers  thau  United 
States. — All  the  instances  of  transfer  given  above  relate  to 

ject  of  a  vast  amount  of  debute  in  Congress  and  in  the  papers.  There 
are  some  who  deny  the  right,  but  it  is  difficult  to  conceive  on  what  au- 
thority. Tlie  Supreme  Court  has  decided  that  the  United  States  is  a 
natiun,  and  as  such  has  all  the  rights  of  sovereignty  that  every  other 
sovereign  nation  has,  and  can  exercise  them  just  as  broadly,  including 
the  right  of  acquisition  of  territory.     .     .     . 

As  to  right  of  acquisition  and  the  right  to  govern  territory  when  ac- 
quired, see  also,  Pomeroy's  Constitution,  494-498,  Jones  vs.  U.  S.  (the 
Navassa  Islands  case),  137  U.  S.  pp.  202-212;  Justice  Miller's  Lectures  on 
the  Constitution,  35,  36,  55,  57;  Justice  Curtis's  Opinion  (Dred  Scott 
case),  19  Howard,  612-614. 

These  cases  and  opinions  are  all  based  upon  the  broad  declaration 
made  by  Chief  Justice  Marshall,  in  1824,  in  American  Ins.  Co.  vs.  Can- 
ter, 1  Peters,  511,  p.  542:  "The  Constitution  confers  absolutely  on  the 
Government  of  the  Union  the  power  to  make  war  and  to  make  treaties; 
consequently  that  government  possesses  the  power  of  acquiring  terri- 
tory either  by  conquest  or  by  treaty." 

Cessions  of  Territory  made  to  the  United  States. — This  (the  cession  of 
territory  in  the  treaty  of  Paris  of  1898)  is  the  second  cession  of  territory 
made  by  Spain  to  the  United  States,  and,  at  least  the  eleventh  acquisi- 
tion of  territory,  by  the  United  States,  increasing  its  original  area  of 
less  than  a  million  square  miles  to  its  present  magnificent  domain  three 
times  as  large  in  area  and  over  fifteen  times  as  great  in  population;  the 
first  cession  made  by  Spain  was  in  1819  under  the  Adams-de  Onis  Treaty, 
by  wliich  Spain  ceded  Florida  to  the  United  States,  in  consideration  of 
•S5, 000,000,  which  was  the  liquidated  amount  of  the  claims  owed  by 
Spain  to  citizens  of  the  United  States  for  depredations  upon  our  com- 
merce and  in  territory  adjoining  Florida, 

The  United  States  has  acquired  Territory  as  folloios': 
By  the  Treaty  of  Peace  with  Great  Britain  after  the  Revolutionary 
War,  when  the  original  boundaries  of  the  United  States  were  fixed,  and 
Great  Britain  renounced  all  jurisdiction  over  the  territory  theiein,  which 
included  not  only  the  thirteen  original  States  themselves,  but  also  a  part 
of  what  was  afterwards  included  in  the  Northwest  Territory;  the  origi- 
nal territory  extended  from  what  is  now  Canada  on  the  north— the 
boundary  line  between  which  and  the  United  States  has  been  fixed  by 
several  subsequent  treaties  and  arbitrations — to  the  northerly  line  of 
Florida  on  the  south;  from  the  Atlantic  on  the  east,  to  the  Mississippi  on 
the  west,  containing  about  eight  hundred  and  twenty-five  thousand 
square  miles.     (U.  S.  Treaty  Volume,  p.  375.) 

The  acquisitions  of  territory  since  that  time  have  been: 
(1)  Louisiana,  consisting,  including  Oregon  the  discovery  and  occupa- 
tion of  which  grew  out  of  tliis  acquisition,  of  over  a  million  square  miles, 
ceded  by  France  to  the  United  States  under  treaty  of  April  30,  1803, 
ratified  October  21,  1803,  by  which  France,  under  Napoleon  Bonaparte 
as  First  Consul,  through  Barbe  Marbois,  ceded  the  territory  for  60,000,000 
80 


CH.  II.]  SOVEHEIGNTY  AND  TEKRITORTAL  ACQUISITION.  §  45 

our  own  acquisitions.  Numerous  examples  could  be  given 
of  similar  transfers  in  every  part  of  the  world,  and  under 

francs,  and  the  relinquishment  of  claims  amounting  to  20,000,000  francs, 
(U.  S.  Treaty  Volume,  pp.  331-342).  Well  did  Mr.  Livingston  exclaim 
to  Mr.  Monroe,  as  they  arose  from  signing  the  treaty:  "We  have  lived 
long,  but  this  is  the  noblest  work  of  our  lives." 

(2)  Florida,  consisting  of  about  sixty  thousand  square  miles,  under 
the  treaty  with  Spain  in  1819,  above  referred  to.  ( U.  S.  Treaty  Volume, 
p.  1016.) 

(3)  Oregon  and  adjoining  territory  vras  acquired  by  the  United  States 
under  the  general  rules  of  discovery  and  occupancy,  based  upon  the  dis- 
covery of  the  mouth  of  the  Columbia  River  by  Captain  Gray,  master  of 
the  good  ship  Columbia,  entering  from  the  Pacific  in  1797;  by  Lewis  and 
Clarke  as  explorers  in  an  expedition  fitted  by  the  United  States  proceed- 
ing from  the  east  about  1804;  and  by  the  ei-ection  of  the  furring  post  by 
John  Jacob  Astor  at  Astoria  in  1811.  The  title  to  Oregon  was  subse- 
quently confirmed  by  treaty  with  Spain  in  1819,  so  far  as  the  northerly 
line  of  the  Spanish  possessions  was  concerned,  not,  however,  in  the  na- 
ture of  cession,  but  only  of  quitclaim.  (U.  S.  Treaty  Volume,  p.  1016.) 
The  area  of  territory  north  of  California  and  east  of  the  Eockies  is  about 
three  hundred  and  fifty  thousand  square  miles. 

(4)  Texu-s,  with  an  area  of  over  a  quarter  of  a  million  square  miles,  in 
1845,  by  joint  resolution,  adopted  by  both  Houses  of  Congress,  after  a 
proposed  treaty  had  failed,  was  admitted  as  a  State,  the  legislature  of 
the  Republic  of  Texas  having  accepted  the  terms  and  conditions  con- 
tained in  a  joint  resolution  adopted  by  Congress.  (For  resolution  and 
proclamation,  see  U.  S.  Statutes  at  Large  for  1845.) 

(5)  California,  Colorado,  Nevada,  Utah,  New  Mexico,  and  parts  of  Ari- 
zona and  other  States,  over  five  hundred  thousand  square  miles  in  all, 
were  acquired  under  the  Treaty  of  Guadalupe-Hidalgo  with  Mexico  in 
1848,  at  the  termination  of  the  Mexican  War,  and  in  consideration  of 
■$15,000,000  paid  to  Mexico  under  somewhat  similar  circumstances  as 
the  $20,000,000  is  to  be  paid  to  Spain  under  the  present  treaty.  ( U.  S. 
Treaty  Volume,  p.  687.) 

(6)  Horse  Shoe  Beef  in  Lake  Erie  was  ceded  to  the  United  States  by 
Great  Britian  in  1850,  without  any  actual  consideration,  but  under  agree- 
ment that  the  United  States  would  erect  and  maintain  a  lighthouse 
thereon.     (U.  S.  Treaty  Volume,  p.  444.) 

(7)  The  Navassa  Islands,  near  Hayti,  and  the  other  Guano  Islands  in 
the  Pacific  Ocean,  have  been  taken  and  occupied  by  the  United  States 
by  discovery  in  pursuance  of  statutes  of  the  United  States  made  in  re- 
gard thereto  (U.  S.  Revised  Statutes,  sees.  5770-5778);  The  Midway  Is- 
lands, situated  in  the  Pacific  Ocean,  about  half  way  between  Hawaii 
and  Japan,  weie  discovered  by  citizens,  and  afterwards  formally  occu- 
pied in  1807  by  the  naval  forces  of  the  United  States  under  the  direc- 
tion of  Secretary  Gideon  Welles.  (See  Senator  Piatt's  Speech,  Senate, 
December  19,  1898,  Congress.  Rec.  p.  325. ) 

(8)  Part  of  Arizona  and  Neio  Mexico,  consisting  of  nearly  fifty  thou- 

6  81 


§  45  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  H. 

every  method,  showing  that  they  have  all  been  recognized  as 
legal,  and  have  been  acted  upon  universally  and  constantly 
for  centuries. 

Canada  was  transferred  by  France  to  Great  Britain  in 
1763  ;  Spain  and  France  several  times  exchanged  Louisiana 
before  it  was  finally  ceded  to  the  United  States ;  Cuba  and 
the  Philippines  were  ceded  by  Spain  to  England  in  1762,  and 
by  England  back  to  Spain  in  1761 ;  in  recent  times  Germany 
acquired  Alsace  and  LoiTaine  from  France  by  conquest  and 
treaty  cession ;  Savoy  was  ceded  to  France,  the  Ionian  Islands 

sand  square  miles,  were  acquired  under  treaty  negotiated  by  James 
Gadsden  in  1853,  and  for  -which  the  sum  of  $10,000,000  was  paid  to 
Mexico.     (U.  S.  Treaty  Volume,  p.  694.) 

(9)  Alaska,  in  1867,  became  United  States  territory  by  a  treaty  nego- 
tiated between  William  H.  Seward,  as  Secretary  of  State,  and  Edward 
Stoekl,  Russian  Ambassador  to  the  United  States,  and  which  conveyed 
to  this  Government  all  of  the  Russian  possessions  in  America,  consisting 
of  over  half  a  million  square  miles,  and  to  which  the  name  of  Alaska 
has  since  been  applied,  for  $7,200,000.     (U.  S.  Treaty  Volume,  p.  939.) 

(10)  Hawaii  was  annexed  by  a  joint  resolution  adopted  by  the  Con- 
gress of  the  United  States,  and  approved  July  7,  1898,  the  terms  of 
which  were  accepted  by  the  legislative  body  of  Hawaii  shortly  there- 
after, and  by  which  joint  action  all  of  the  islands  forming  the  sov- 
ereignty of  Hawaii,  and  which  were  formerly  known  as  the  Sandwich 
Islands,  became  a  part  of  the  territory,  but  not  as  a  State  of  the  United 
States,  and  subject  to  the  terms  of  the  joint  resolution.  (30  Stat,  at  L., 
p.  750.) 

(11)  The  Philippines,  Porto  Eico  and  Guam  were  annexed  by  the  trea- 
ties with  Spain  of  December  10,  1898,  (30  Stat,  at  L.,  p.  1754;  see  also 
Insular  Cases  Appendix,  p.  000,  jjost)  and  of  November  7, 1900  (31  Stat, 
at  L.,  p.  1942).  This  latter  treaty  transferred  a  part  of  the  Philippine  Is- 
lands not  included  in  the  boundaries  set  by  the  treaty  of  1898. 

(12)  The  United  States  has  also  acquired  the  island  of  Tutuila,  one 
of  the  group  of  the  Samoan  Islands,  which  contains  the  harbor  of  Pago- 
Pago.     (See  treaty  with  Samoa,  U.  S.  Treaty  Volume,  ed.  1899,  p.  551.) 

(See  the  last  map  of  the  United  States,  published  by  the  Government, 
for  most  of  these  additions  of  territory,  showing  their  area  and  geograph- 
ical location). 

See  also  for  details  of  acquisition  of  territory  prior  to  1898,  The  Lou- 
isiana Purchase,  by  Dinger  Hermann  U.  S.  Land  Commissioner,  pub- 
lished by  the  Department  of  the  Interior,  Washington,  Government 
Printing  Office,  1898. 

Volume  I  of  James  G.  Blaine's  Twenty  Years  in  Congress  contains  an 
exhaustive  review  of  the  causes  leading  to  annexation  of  territory  and 
the  effect  of  annexation. 

82 


CH.  n.]  SOYEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  46 

to  Greece,  Yenetia  to  Italy ;  in  fact,  an  examination  of  the 
map  of  Europe  will  show  constant  and  numerous  changes  of 
sovereignty,  all  of  which  have  been  recognized  as  valid  by 
the  powers  to,  and  from,  which  the  transfers  have  been  made, 
by  the  inhabitants  of  the  transferred  territory,  and  by  all  the 
other  powers  of  the  world.^ 

§  40.  Couseut  of  governed  not  required  under  interna- 
tional law. — The  principle  of  international  law,  that  the  con- 
sent of  the  inhabitants  of  territor}'^,  ceded  by  one  sovereign 
power  to  another,  is  not  required  to  validate  the  transfer, 
either  of  the  territory  or  the  sovereignty  thereover,  is  as 
well  established  as  the  principle  of  municipal  law,  as  it  is  gen- 
erally administered,  has  been  established,  that  the  consent  of 
a  tenant  is  not  necessary  to  enable  the  owner  of  the  fee  to 
dispose  of  it. 

This  rule  has  been  recognized  and  adopted  not  only  in  the 
United  States,  but  the  world  over.  There  was  no  plebiscite 
in  Alsace  or  Lorraine  when  the  borderland  Frenchmen  be- 
came the  subjects  of  Germany.  The  French  colonists  of 
Quebec  could  not  speak  English  when  by  the  treaty  of  1763 
they  were  transformed  into  British  subjects.  The  Spanish 
and  native  population  of  Cuba  and  the  Philippines  were  not 
consulted  in  1762  or  1761.^ 


§45. 

1  bee  the  instances  of  transfer  of 
territory  referred  to  in  notes  to 
§  43,  ante. 

§46. 

i"§  1.  Right  of  One  Sovereign 
Power  to  Cede  Territory  to  Another 
Sovereign  Power. — This  riglit  is 
discussed  in  Hall's  International 
Law,  section  9,  pages  47-50.  He 
defines  it  as  follows  (p.  47): 

"  '  The  rights  of  a  state  with  re- 
spect to  property  consist  in  the 
power  to  acquire  territory,  .  .  . 
in  being  entitled  to  peaceable  pos- 
session and  enjoyment  of  that 
which  it  has  duly  obtained,  and  in 
the  faculty  of  using  its  proj^erty  as 
it  chooses  and  alienating  it  at  will. 
.     ,    .    The    principle    that    the 


wishes  of  a  population  are  to  be 
consulted  when  the  territory  which 
they  inhabit  is  ceded,  has  not  yet 
been  adopted  into  international 
law,  and  cannot  be  adopted  into 
it  until  title  by  conquest  has  dis- 
appeared.' 

"  He  cites  the  cessions  of  Savoy 
to  Frame,  the  Ionian  Islands  to 
Greece,  Venetia  to  Italy,  and  other 
European  cessions,  and  further  says 
(p.  49): 

"  'States  being  the  sole  interna- 
tional units,  the  inhabitants  of  a 
ceded  territory,  whether  acting  as 
an  organized  body  or  as  unorgan- 
ized mass  of  individuals,  have  no 
more  power  to  confirm  or  reject  the 
action  of  their  state  than  is  pos- 
sessed by  a  single  individual.     An 

83 


§47 


TREATY-ISIAKING  POWER  OF  THE  U.  S.  [CH.  U. 


§  47.  The  United  States  has  never  asked  the  consent  of 
the  inhabitants  of  ceded  territory. — The  United  States  has 
never  asked  the  inhabitants  of  any  of  its  purchased  territory- 


act,  on  the  other  hand,  done  by 
the  state  as  a  whole  is,  by  the  very 
conception  of  a  state,  binding  upon 
all  the  members  of  it.' 

"  The  followiug  is  a  citation  from 
an  eminent  authority: 

"  'I  need  not  dwell  upon  the  right 
to  transfer  territory,  or  in  other 
words,  to  put  an  end  to  all  domin- 
ion over  them,  for  acquisition  on 
the  part  of  one  nation  implies 
transfer,  or  end  of  dominion,  by 
another.' — John  Norton  Pome- 
roy's  Lectures  on  International 
Law,  edited  by  Theo.  S.  Woolsey, 
Boston,  1S8G,  p.  198. 

"  In  Halleck's  International  Law, 
San  Francisco  edition,  18G1,  at 
page  125,  the  rule  is  stated: 

"  'A  state  being  regarded  in  our 
law  as  a  body  politic  or  distinct 
moral  being,  naturally  sovereign 
and  independent,  it  is  considered 
capable  of  the  same  rights,  duties 
and  obligations  with  respect  to 
other  states  as  individuals  with  re- 
spect to  other  individuals.  Among 
the  most  important  of  these  natu- 
ral rights  is  that  of  acquiring,  pos- 
sessing, and  enjoying  property. 
.  .  .  A  sovereign  has  the  same 
absolute  right  to  dispose  of  its 
territorial,  or  rather  public,  proi> 
erty,  as  it  has  to  acquire  such  prop- 
erty.' 

"  Halleck  thinks  that  in  some 
cases  the  consent  of  the  governed 
is  necessary  before  the  transfer  of 
allegiance  can  take  place,  but  he 
shows,  however,  that  there  are 
numerous  examples  of  treaties  of 
sale,  and  cites  a  number  of  them 
on  pages  128  and  129,  and  states 
that  in  some   instance  territories 

84 


have  even  been  mortgaged,  and 
bought  in  thereafter,  and  that  fur- 
thermore, it  has  been  the  custom 
'  to  dispose  of  sovereignties  and  do- 
minions by  deeds  of  gift  and  be- 
quests.' " — From"  Our  Treaty  with 
Spain,"  referred  to  in  note  under 
§  44  ante. 

Professor  Woolsey  says: 
"  Sec.  54.  There  is  a  tendency, 
in  quite  recent  times,  to  act,  in  in- 
ternational arrangements,  upon  the 
principle  here  stated,  that  the  con- 
sent of  the  inhabitants  of  a  ceded 
territory  ought  to  be  obtained.  In 
the  treaty  of  Prague  of  1866  (see 
Append,  ii.,  sub  anno],  it  is  pro- 
vided that  the  rights  of  Austria  to 
Schleswig-Holstein  are  ceded  to 
Prussia,  '  with  the  reservation  that 
the  inhabitants  in  northern  Schles- 
wig  shall  be  united  anew  to  Den- 
mark, if  they  express  the  desire 
for  it  in  a  free  vote.'  (This,  how- 
ever, has  never  been  taken. )  Here, 
however,  the  Danish  nationality  of 
that  part  of  the  duchy  was,  without 
doubt,  of  weight,  and  of  the  more 
weight,  as  the  Germans  had  insisted 
on  the  German  nationality  of  both 
duchies  in  their  contest  with  Den- 
mark. In  1860  the  Neapolitan  prov- 
inces,— Sicily,  the  Marches,  and 
Umbria, — were  annexed  to  the 
kingdom  of  Italy  in  the  same  way 
by  direct  and  universal  suffrage. 
The  decree  of  December  17,  which 
declares  the  Neapolitan  provinces 
to  form  thenceforth  an  integral  part 
of  the  kingdom,  is  based  on  the 
submission  of  a  plebiscitiun  to  the 
people,  on  the  proof  that  it  was  pre- 
sented to  them  and  accepted,  and  on 
a  law  authorizing  the  government 


CH.  II.]  SOVEREIGNTY  AND  TERKITORIAL  ACQUISITION.  §  47 


to  ratify  the  transfer.  It  has  always  acted  on  the  basis  that 
it  had  the  right  to  acquire  the  territory  if  the  other  sov- 
ereign had  the  right  to  cede  it.  There  was  no  plebiscite  in 
1803  in  Louisiana,  where  the  inhabitants  were  subjects  of 
Spain,  of  France  and  of  the  United  States,  within  the  brief 
space  of  a  single  month.  No  consent  was  asked  of  the  inhab- 
itants of  Florida  in  1810,  of  the  Mexicans  in  1818  or  1853,  or 
of  the  Alaska  Indians  or  Russian  colonists  in  1867 ;  no  rea- 
son now  exists  why  the  consent  of  the  inhabitants,  Spanish 
or  native,  of  the  Philippines,  Porto  Rico  or  Guam,  should  be 
asked,  expected,  or  in  any  manner  regarded  as  requisite,  to 
complete  our  title  under  the  treaty  of  1898. 

Had  the  inhabitants  of  Louisiana  refused  their  consent  to 
the  transfer  of  that  province  from  Spain  to  France,  or  from 
France  to  the  United  States,  would  we  have  been  forced  to 
permit  the  mouth  of  the  Mississippi,  to  obtain  the  control  of 
which  the  purchase  was  made,  to  remain  in  the  hands  of  a 
foreign  power,  and  thus  have  lost,  not  only  the  territory  we 
had  paid  for,  but  also  all  access  to  the  sea,  which  was  ab- 
solutely essential  for  our  commercial  salvation  ? 

Had  the  inhabitants  of  Florida  in  1819,  as  might  possibly 
have  been  the  case,  insisted  upon  their  consent  being  obtained, 


'to  accept,  and  by  royal  decrees 
establish,  the  annexation  to  the 
state  of  those  provinces  of  central 
and  southern  Italy  in  which  there 
shall  be  manifested  freely,  by  di- 
rect, universal  suffrai^e,  the  w\U  to 
become  an  integral  part  of  the  con- 
stitutional monarchy,'  of  Italy. 
In  this  way,  doubtless,  it  was  in- 
tended to  turn  a  half  rig^ht  into  a 
whole  one,  or  to  sanctify  unjust 
conquest  by  popular  consent.  The 
principle  would  be  a  good  and 
beneficial  one  as  between  two 
states  that  such  consent  should  be 
necessary  before  a  transfer  of  alle- 
giance. But,  to  make  a  desire  on 
the  part  of  the  inhabitants  of  a 
district  a  ground  for  interfering  on 
their  behalf  to  disconnect  them 
from  one  state,  and  to  connect  them 


with  another,  would  go  beyond 
any  interference  now  known  to  in- 
ternational law  in  its  disintegrat- 
ing tendency,  and  would  give  rise 
to  any  amount  of  intrigue  and  un- 
just influence. 

"  In  the  Treaty  of  Turin,  uniting 
Savoy  and  Nice  to  Franco,  the  finst 
article  provides  that  '  this  union 
shall  be  effectuated  without  con- 
straining the  will  of  the  inhabi- 
tants, and  that  the  governments  of 
the  P]mperor  of  the  French  and  of 
the  King  of  Sardinia  will  agree  as 
soon  as  possible  as  to  the  best 
means  of  estimating  and  cei'tifying 
the  demonstrations  of  tliis  will.' 
(Martens,  N.  Kec.  Gen.  XVI.  2,  539. 
Comp.  App.  ii.,  under  1859.)" 
Woolsey's  Int.  Law,  pp.  63-65. 

85 


§  48  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  II. 

had  the  tribes  of  Indians,  and  hordes  of  buccaneers  compos- 
ing the  population  of  that  colony  of  Spain  objected  to  the 
strong  arm  of  the  United  States  being  extended  over  them, 
and  their  consent  had  been  required,  not  only  would  we 
never  have  been  able  to  collect  the  indemnity  due  to  us  from 
Spain,  and  which  was  represented  by  the  value  of  that  ces- 
sion ;  but,  according  to  the  doctrines  announced  two  years 
ago  by  a  minority  in  the  Senate,  we  might  still  have  a  foreign 
power  between  our  southern  boundary  and  the  Gulf  of  Mex- 
ico. The  extension  of  our  sovereignty  from  the  western 
boundary  of  the  Louisiana  purchase  to  the  Pacitic  might 
have  been  prevented  in  1848,  had  it  been  necessary  to  ob- 
tain the  consent  of  the  then  far  scattered  inhabitants  of  the 
ceded  territory. 

The  same  conditions  prevail  in  regard  to  the  territory  ceded 
under  the  treaty  of  1898.  The  legal  principles  are  exactly 
the  same ;  so  far  as  the}^  are  concerned,  the  number  of  in- 
habitants, and  their  race,  color  and  condition  make  no  differ- 
ence whatever. 

§  48.  Impracticability  of  ascertaining  consent. — The  im- 
practicability of  ascertaining  such  consent  after  a  ceding 
government  has  ceded,  and  the  receiving  government  has  ac- 
cepted, territory,  can  be  most  plainly  shown  by  assuming  for 
a  moment  that  such  consent  is  required,  and  then  ascertaining 
how  the  consent  must  be  evidenced,  and  what  the  result 
would  be  if  the  inhabitants  should  not  give  their  consent. 
It  would  probably  be  beyond  the  ability  of  an}'^  expert  in 
municipal  or  international  law  to  answer  the  following  ques- 
tions in  regard  to  the  recent  acquisitions  of  the  United 
States : 

1.  AVhose  consent  is  necessary ;  in  this  respect,  bearing  in 
mind  that  until  the  extension  of  our  laws  over  the  territory 
there  is  no  basis  for  suffrage — men,  women,  children,  black, 
white,  Spanish,  Chinese,  native,  all  are  alike — and  also  how 
can  they  express  this  consent  ?  2.  In  what  manner,  and  under 
whose  supervision,  must  this  consent  be  expressed ;  in  this 
respect,  bearing  in  mind  that  one  of  the  highest  acts  of  sov- 
ereignty is  permitting  the  exercise  of  suffrage,  and  control- 
ling the  manner  in  which  it  may  be  exercised  ?  3.  What 
would  be  the  effect  of  the  expression  in  case  it  were  not,  as 
86 


CH.  II.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  50 

must  inevitably  be  the  case,  unanimous;  taking  into  consid- 
eration whether  or  not  any  power  exists  under  those  circum- 
stances, by  which  the  majority  could  coerce  a  minority  until 
after  some  law  to  that  effect  had  been  established  ?  4.  In 
case  the  consent  were  withheld,  who  is  to  enforce  law  and 
order,  and  how  could  the  United  States  avoid  national  re- 
sponsibility for  disorder  if  it  should  now  withdraw  and 
leave  the  peaceable  inhabitants  to  their  fate  ? 

Of  course  it  is  simply  a  reductio  ad  absurdum  to  say  that 
we  must  exercise  over  any  territory  the  very  highest  acts  of 
sovereignty  in  order  to  find  out  if  we  have  the  right  to  exer- 
cise any  sovereignty  whatever. 

§  49.  Special  instances  in  which  obtaining  consent  might 
be  practicable. — There  are,  however,  instances,  as  in  the 
cases  of  Texas  and  Hawaii,  where  the  inhabitants  can  express 
their  consent,  and  the  annexation  can  be  made  as  the  result 
of  the  voice  and  the  wish  of  the  inhabitants ;  it  would  be 
just  as  reasonable,  however,  to  require  that  the  inhabitants 
of  the  United  States  should  be  called  upon  to  express,  by  a 
popular  plebiscite,  their  acceptance  of  the  annexation  as  to 
require  the  plebiscite  of  the  other  country,  after  the  ruling 
powers,  properly  exercising  sovereignty  thereover,  had  con- 
sented to  the  annexation.  Had  the  proposed  annexations 
of  Texas  or  Hawaii  been  rejected  by  a  popular  vote,  they 
might  have  been  prevented,  although  the  author  is  not  pre- 
pared to  admit  that  such  would  have  been  the  case  if  the  rul- 
ing powers  had  assented  thereto.  Those  annexations,  how- 
ever, were  entirely  different  from  the  transfers  of  territory 
from  sovereign  powers  that  have  been  compelled  to  make 
the  transfers  either  for  reasons  of  political  convenience  or 
under  duress  of  conquest ;  in  such  cases,  of  course,  the  refusal 
on  the  part  of  the  inhabitants  to  assent  to  the  transfer  has  no 
effect  whatever  except,  as  has  been  evidenced  in  the  Philip- 
pine Islands,  to  place  such  of  the  non-consenting  inhabitants 
who  have  attempted  to  express  their  dissent  by  force,  in  the 
category  of  insurgents. 

§  50.  Restrictions  on  acquisitions  of  territory  by  Euro- 
pean powers  under  "balance  of  power"  theory. — While 
international  law  places  no  restraint  upon  any  sovereign 
power  from  acquiring  territory,  there  have  been  some  restric- 

87 


§51 


TKEATY-INIAKING  POWER  OF  THE  U.  S.  [CH.  H. 


tions  placed  thereon  as  between  some  of  the  great  European 
powers  ;  these  restrictions,  howev^er,  are  not  based  upon  any 
lack  of  power  either  to  acquire  territory  or  to  cede  it,  but  are 
based  upon  the  political  necessity  of  maintaining  the  equilib- 
rium between  those  governments.  This  is  known  as  the 
"  balance  of  power "  theory.  Kestrictions  have  also  been 
placed  on  the  acquisition  by  European  powers  of  territory, 
on  this  side  of  the  Atlantic,  which,  are  also  based  on  politi- 
cal grounds  but  of  a  different  nature,  as  will  be  stated  in  the 
next  section.^ 

§  51.  Acquisitions  of  United  States  never  objected  to  by 
other  powers. — These  points  are  referred  to  here  for  the 
purpose  of  calling  attention  to  two  remarkable  facts.  The 
first  is,  that  of  all  the  great  powers  of  the  world  the  United 
States  alone  has  exercised  the  right  to  acquire  territory 
without  any  restraint  being  imposed  upon  it,  or  protest 
being  uttered  against  its  course,  by  any  other  power  great 
or  small ;  the  second  is,  that  during  the  past  seventy-five 
years  the  United  States  has  prevented  nearly  every  European 
power  from  exercising  the  right  of  acquisition,  simply  by 
protesting  that  the  United  States  would  consider  the  con- 
templated act  as  prejudicial  to  its  own  interests,  and  contrary 
to  the  policy  which  it  has  declared  must  govern  the  condi- 
tions of  the  ^Yestern  Hemisphere. 

When  Russia  forced  Turkey  in  1878  to  cede  vast  tracts  of 
territor}'-  to  her  in  the  nature  of  indemnit}^,  the  Congress  of 
Berlin  over  which  Bismarck  presided  not  only  protested 
against  Russia's  great  accessions  as  being  dangerous  to  the 
peace  of  Europe,  but  forced  her  to  restore  a  large  amount  of 
the  territory  which  she  bad  acquired  under  the  treaty  of 
San  Stephano.^ 


§50. 

^The  political  doctrine  known  as 
"  the  balance  of  power,"  is  referred 
to,  and  supported  as  one  founded 
on  natural  principles,  by  James  W. 
Gerard  in  bis  "  Peace  of  Utrecbt," 
chap.  I.,  pp.  1-4. 

§51. 

1  The  treaty  of  San  Stef ano  was 
concluded  on  March  3,  1878;  by  it 
88 


the  frontier  line  between  Eussia 
and  Turkey  was  pushed  so  far  to 
the  south  that  the  other  European 
powers  became  alarmed  at  the 
great  additional  power  acquired  by 
Russia;  Lord  Salisbury  at  once 
gave  notice  that  England  could 
not  look  upon  this  with  indiffer- 
ence and  Count  Miinster  on  behalf 
of  the  Emperor  of  Germany  invited 


CH.  n.]  SOVEREIGNTY  AND  TERMTORIAL  ACQUISITION.  §  52 

In  the  dismemberment  of  Turkey,  the  break-up  of  China, 
the  parceling  of  Africa  into  colonies  and  spheres  of  influ- 
ence, each  power  has  jealously  watched  events  so  that  all 
apparent  advantages  have  been  immediately  equalized,  either 
by  the  reduction  of  one  or  the  increase  of  the  other,  as  was 
the  case  when  the  seizure  by  the  Germans  of  Foo  Chow  in 
China  resulted  immediately  in  Russia  occupying  Port  Arthur, 
and  Great  Britain  taking  possession  of  Wei  Hai  Wei. 

Against  the  steady  increase,  however,  of  the  United  States 
no  protest  has  been  raised,  no  equalizations  have  been  de- 
manded. We  have  negotiated,  and  carried  into  effect,  every 
treaty  involving  cessions  of  territory  without  the  interven- 
tion or  interference  of  any  other  power. 

No  other  government  could  have  acquired  the  Philippine 
Archipelago  without  raising  a  storm  of  protest  from  all  the 
other  powers  of  the  world ;  an  attempt  on  the  part  of  any 
European  power  to  have  acquired  those  islands  would  un- 
questionably have  resulted  in  a  congress  being  held  at  Ber- 
lin, Vienna,  or  some  other  European  capital,  to  determine 
how  the  islands  should  be  distributed  between  the  different 
powers  of  Europe,  or  otherwise  disposed  of. 

§  52.  Acquisition  of  European  powers  prevented  by  Uni- 
ted States  under  Monroe  Doctrine On  the  other  hand  the 

United  States  has,  whenever  it  deemed  it  advisable,  protested 
against  the  acquisitions  of  American  territory  by  other  pow- 
ers, and  has  always  been  able  to  maintain  its  position.  The 
Monroe  Doctrine,  dear  to  the  heart  of  every  American,  and 
the  keystone  of  our  impregnable  position  on  this  hemisphere, 
could  never  have  been  promulgated  and  insisted  upon  by 


the  Powers  to  send  representatives 
to  a  congress  which  should  meet 
in  Berlin  to  "discuss  the  stipula- 
tions of  the  Preliminary  treaty  be- 
tween Russia  and  Turkey  signed 
at  San  Stefano  on  the  3d  of  March, 
1878."  The  invitation  was  ad- 
dressed to  all  the  powers  which 
were  signatory  to  the  treaties  of 
Paris  of  18o6andof  London  of  1871. 
The  Congress  met  on  June  13, 
1878,  and  Prince  Bismarck  was 
elected  President;    a    treaty    was 


concluded  on  July  13th  by  which 
a  large  part  of  the  territoi-y  ceded 
under  the  treaty  of  San  Stefano 
was  restored  to  Turkey. 

The  signatory  powers  were  Great 
Britain,  Germany,  Austria,  France, 
Italy,  Russia  and  Turkey. 

The  Treaty  of  San  Stefano,  the 
Protocols  of  the  Berlin  Congress 
and  the  Treaty  of  Berlin  with  maps 
showing  the  territory  restored  ap- 
pear in  vol.  IV.,  Hertslet,  Map  of 
Europe  by  Treaty,  pp.  2672-2799. 
89 


§  62  TREATY-]\LVKING  POWER  OP  THE  U.  S.  [CH.  II. 

ourselves,  nor  indeed  would  an}^  attention  iiave  been  paid 
thereto  by  any  other  government,  had  it  not  been  the  decla- 
ration of  a  nation  that  was  as  absolutely  sovereign  as  any 
other  power  in  the  world.^ 


§52. 

1  AUTHOR'S  NOTE  OX  THE  MONROE  DOCTRINE. 

THE  MOKBOE  DOCTEIXE  AS  ENUNCIATED  BY  PRESIDENT  MONROE,  DECEM- 
BER 2,  1823. 

"  At  the  proposal  of  the  Russian  Imperial  Government,  made  thi-ough 
the  minister  of  the  Emperor  residing  here,  a  full  power  and  instructions 
have  been  transmitted  to  the  minister  of  the  United  States  at  St.  Peters- 
burg to  arrange  by  amicable  negotiation  the  respective  rights  and  inter- 
ests of  tlie  two  nations  on  the  Northwest  coast  of  this  Continent.  A 
similar  proposal  has  been  made  by  His  Imperial  Majesty  to  the  Govern- 
ment of  Great  Britain,  which  lias  likewise  been  acceded  to.  The  Govern- 
ment of  the  United  States  has  been  desirous  by  this  friendly  proceeding 
of  manifesting  the  great  value  ■which  they  have  invariably  attached  to 
the  friendship  of  the  Emperor  and  their  solicitude  to  cultivate  the  best 
understanding  with  his  Government.  In  the  discussions  to  which  this 
interest  lias  given  rise  and  in  the  arrangements  by  which  they  may  ter- 
minate the  occasion  has  been  judged  proper  for  asserting,  as  a  principle 
in  which  the  rights  and  interests  of  the  United  States  are  involved, 
that  the  American  Continents,  by  the  free  and  independent  condition 
which  they  have  assumed  and  maintain,  are  henceforth  not  to  he 
considered  as  subjects  for  future  colonization  by  any  European 
powers.    .    . 

"  It  -was  stated  at  the  commencement  of  the  last  session  that  a  great 
effort  was  then  making  in  Spain  and  Portugal  to  improve  the  condition 
of  the  people  of  those  countries,  and  that  it  appeared'  to  be  conducted 
with  extraordinary  moderaticm.  It  need  scarcely  be  remarked  that  the 
result  has  been  so  far  very  different  from  what  was  then  anticipated. 
Of  events  in  that  quarter  of  the  globe  with  which  we  have  so  much  in- 
tercourse and  from  which  we  derive  our  origin,  we  have  always  been 
anxious  and  interested  spectators.  The  citizens  of  the  United  States 
cherish  sentiments  the  most  friendly  in  favor  of  the  liberty  and  happi- 
ness of  their  fellow-men  on  that  side  of  the  Atlantic.  In  the  wars  of 
the  European  powers  in  matters  relating  to  themselves  we  have  never 
taken  any  part,  nor  does  it  comport  with  our  policy  so  to  do.  It  is 
only  when  our  rights  are  invaded  or  seriously  menanced  that  we  resent 
injuries  or  make  preparation  for  our  defense. 

"  With  the  movements  in  this  hemisphere  we  are  of  necessity  more  im- 
mediately connected,  and  by  causes  which  must  be  obvious  to  all  en- 
lightened and  impartial  observers.  The  political  system  of  the  allied 
powers  is  essentially  different  in  this  aspect  from  that  of  America. 
This  difference  proceeds  from  that  which  exists  in  their  respective  Gov- 
ernments; and  to  the  defense  of  our  own,  which  has  been  achieved  by 
90 


CH.  II.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  52 

Protests  indeed  have  been  made  against  our  right  to  main- 
tain the  Monroe  Doctrine,  but,  notwithstanding  the  protests, 

the  loss  of  so  much  blood  and  treasure,  and  matured  by  the  wisdom  of 
their  most  enlightened  citizens,  and  under  which  we  have  enjoyed  un- 
exampled felicity,  this  whole  nation  is  devoted.  We  owe  it,  therefore,  to 
candor  and  to  the  amicable  relations  existing  between  the  United  States 
and  those  powers  to  declare  that  we  should  consid-er  any  attempt  on 
their  part  to  extend  their  system  to  any  portion  of  this  hemisphere  as 
dangerous  to  our  peace  and  safety.  With  the  existing  colonies  or 
depeudeacies  of  any  European  power  we  liave  not  interfered  and  shall 
not  interfere.  Uiit  with  the  Governments  who  have  declared  their 
independence  and  maintained  it,  and  whose  independence  we  have,  on 
great  consideration  and  on  just  principles,  acknowledged,  we  could 
not  view  any  interposition  for  the  purpose  of  oppressing  them,  or  con- 
trolling in  any  other  manner  their  destiny,  by  any  European  power 
in  any  other  light  than  as  the  manifestation  of  an  unfriendly  dis- 
position toward  the  United  States.  In  the  war  between  those  new 
Governments  and  Spain  we  declared  our  neutrality  at  the  time  of  their 
recognition,  and  to  this  we  have  adliered,  and  shall  continue  to  adhere, 
provided  no  change  shall  occur  which,  in  the  judgment  of  the  competent 
authorities  of  this  Gt)vernment,  shall  make  a  corresponding  change  on 
the  part  of  the  United  States  indispensable  to  their  security. 

"  The  late  events  in  Spain  and  Portugal  show  that  Europe  is  still  un- 
settled. Of  this  important  fact  no  stronger  proof  can  be  adduced  than 
that  the  allied  powers  should  have  thought  it  proper,  on  any  principle 
satisfactory  to  themselves,  to  have  interposed  by  force  in  the  internal 
concerns  of  Spain.  To  what  extent  such  interposition  may  be  carried, 
on  the  same  principle,  is  a  question  in  which  all  independent  powers 
whose  Governments  differ  from  theirs  are  interested,  even  those  most 
remote,  and  surely  none  more  so  tlian  tlie  United  States.  Our  policy  in 
regard  to  Europe,  which  was  adopted  at  an  early  stage  of  the  wars  wiiich 
have  so  long  agitated  that  quarter  of  the  globe,  nevertheless  remains 
the  same,  which  is,  not  to  interfere  in  the  internal  concerns  of  any  of 
its  powers;  to  consider  the  Government  tie  facto  as  the  legitimate  Govern- 
ment for  us;  to  cultivate  friendly  relations  with  it,  and  to  preserve  those 
relations  by  a  frank,  firm,  and  manly  policy,  meeting  in  all  instances 
the  just  claims  of  every  power,  submitting  to  injuries  from  none.  But 
in  regard  to  those  continents  circumstances  are  eminently  and  conspicu- 
ously different.  It  is  impossible  that  the  allied  powers  should  extend 
their  political  system  to  any  portion  of  either  continent  witliout  en- 
dangering our  peace  and  happiness;  nor  can  any  one  believe  that  our 
southern  brethren,  if  left  to  themselves,  would  adopt  it  of  their  own 
accord.  It  is  equally  impossible,  therefore,  that  we  should  behold  such 
interposition  in  any  form  witli  indifference.  If  we  look  to  the  com- 
parative strength  and  resources  of  Spain  and  those  new  Governments, 
and  their  distance  from  each  other,  it  must  be  obvious  that  she  can 
never  subdue  them.  It  is  still  the  true  policy  of  the  United  States  to 
leave  the  parties  to  themselves,  in  the  hope  that  other  powers  will  pur- 

91 


§  52  TREATY-MAKING  POWER  OF  THE  TJ.  S.         [CH.  II. 

our  warnings  have  been  respected  in  every  instance  in  which 
we  have  uttered  them  in  accord  with  the  spirit  in  which  the 

sue  the  same  course."  [Extract  from  the  Seventh  Annual  Message 
transmitted  to  the  Congress  of  the  United  States  by  James  Monroe, 
fifth  President  of  the  United  States,  on  December  2,  1823.  Richardson's 
Messages  and  Papers  of  the  Presidents,  vol.  II.,  pp.  209,  217-219.  The 
paragraphs  in  bold  face  type  in  the  preceding  and  subsequent  quota- 
tions are  those  which  are  generally  quoted  as  the  "Monroe  Doctrine," 
and  which  constitute  the  best  existing  exposition  of  the  principle  of 
non-interference  of  European  powers  in  American  affairs.] 

The  neutral  position  which  the  United  States  had  maintained  in  regard 
to  the  relations  of  Spain  and  the  Spanish-American  Colonies  was  referred 
to  at  length  in  President  Monroe's  Sixth  Annual  Message  transmitted 
to  Congress  on  December  3,  1822,  as  follows: 

"A  strong  hope  was  entertained  that  peace  ere  this  would  have  been 
concluded  between  Spain  and  the  independent  governments  south  of 
the  United  States  in  this  hemisphere.  Long  experience  having  evinced 
the  competency  of  those  governments  to  maintain  the  independence 
which  they  had  declared,  it  was  presumed  that  the  considerations  which 
induced  their  recognition  by  the  United  States  would  have  had  equal 
weight  with  other  powers,  and  that  Spain  herself,  yielding  to  those  mag- 
nanimous feelings  of  which  her  history  furnishes  so  many  examples, 
would  have  terminated  on  that  basis  a  controversy  so  unavailing  and  at 
the  same  time  so  destructive.  We  still  cherish  the  hope  that  this  result 
will  not  be  long  postponed. 

"Sustaining  our  neutral  position  and  allowing  to  each  party  while 
the  war  continues  equal  rights,  it  is  incumbent  on  the  United  States  to 
claim  of  each  with  equal  rigor  the  faithful  observance  of  our  rights  ac- 
cording to  the  well-known  law  of  nations.  From  each,  therefore,  a  like 
co-operation  is  expected  in  the  suppression  of  the  piratical  practice 
wliich  has  grown  out  of  this  war  and  of  blockades  of  ex^tensive  coasts  on 
both  seas,  which,  considering  the  small  force  employed  to  sustain  them, 
have  not  the  slightest  foundation  to  rest  on. 

"Europe  is  still  unsettled,  and  although  the  war  long  menaced  be- 
tween Russia  and  Turkey  has  not  broken  out,  there  is  no  certainty  that 
the  differences  between  those  powers  will  be  amicably  adjusted.  It  is 
impossible  to  look  to  the  oppressions  of  the  country  respecting  which 
those  differences  arose  without  being  deeply  affected.  The  mention  of 
Greece  fills  the  mind  with  the  most  exalted  sentiments  and  arouses  in 
our  bosoms  the  best  feelings  of  which  our  nature  is  susceptible.  Supe- 
rior skill  and  refinement  in  the  arts,  heroic  gallantry  in  action,  disin- 
terested patriotism,  enthusiastic  zeal  and  devotion  in  favor  of  public 
and  personal  liberty  are  associated  with  our  recollections  of  ancient 
Greece.  That  such  a  cormtry  should  have  been  overwhelmed  and  so 
long  hidden,  as  it  were,  from  the  world  under  a  gloomy  despotism  has 
been  a  cause  of  unceasing  and  deep  regret  to  generous  minds  for  ages 
past.  It  was  natural,  therefore,  that  the  reappearance  of  those  people 
in  their  original  character,  contending  in  favor  of  their  liberties,  should 

92 


CH.  n.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  52 

doctrine  was  originally  announced,  and  has  ever  since  been, 
as  it  always  should  be,  maintained.^ 

2  See    reference  to   Lord    Salis-  I  bury's  letter  in  note  1  on  page  107, 

I  post. 
produce  that  great  excitement  and  sympathy  in  their  favor  whicli  have 
been  so  signally  displayed  throughout  the  United  states.     A  strong  hope 
is  entertained  that  tliese  people  will  recover  their  independence  and 
resume  their  equal  station  among  the  nations  of  the  earth. 

"  A  great  effort  has  been  made  in  Spain  and  Portugal  to  improve  the 
condition  of  the  people,  and  it  must  be  very  consoling  to  all  benevolent 
minds  to  see  the  extraordinary  moderation  with  which  it  has  been  con- 
ducted. That  it  may  promote  the  happiness  of  both  nations  is  the  ar- 
dent wish  of  this  whole  people,  to  the  expression  of  which  we  confine 
ourselves;  for  whatever  may  be  the  feelings  or  sentiments  which  every 
individual  under  our  Government  has  a  right  to  indulge  and  express,  it 
is  nevertheless  a  sacred  maxim,  equally  with  the  Government  and  the 
people,  that  the  destiny  of  every  independent  nation  in  what  relates  to 
such  improvements  of  right  belongs  and  ought  to  be  left  exclusively  to 
themselves. 

"  Whether  we  reason  from  the  late  wars  or  from  those  menacing  symp- 
toms which  now  appear  in  Europe,  it  is  manifest  that  if  a  convulsion 
should  take  place  in  any  of  those  countries  it  will  proceed  from  causes 
which  have  no  existence  and  are  utterly  unknown  in  the  States,  in  which 
there  is  but  one  order,  that  of  the  people,  to  whom  the  sovereignty  ex- 
clusively belongs.  Sliould  war  break  out  in  any  of  those  countries,  who 
can  foretell  the  extent  to  which  it  may  be  carried  or  the  desolation 
which  it  may  spread?  Exempt  as  we  are  from  these  causes,  our  in- 
ternal tranquillity  is  secure;  and  distant  as  we  are  from  the  troubled 
scene,  and  faithful  to  first  principles  in  regard  to  other  powers,  we  might 
reasonably  presume  that  we  should  not  be  molested  by  them.  This, 
however,  ought  not  to  be  calculated  on  as  certain.  Unprovoked  injuries 
are  often  inflicted,  and  even  the  peculiar  felicity  of  our  situation  might 
with  some  be  a  cause  for  excitement  and  aggression.  The  history  of 
the  late  wars  in  Europe  furnishes  a  complete  demonstration  that  no  sys- 
tem of  conduct,  however  correct  in  principle,  can  protect  neutral  powers 
from  injury  from  any  party;  thata  defenceless  position  and  distinguished 
love  of  peace  are  the  surest  invitations  to  war,  and  that  there  is  no  way 
to  avoid  other  than  by  being  always  prepared  and  willing  for  just  cause 
to  meet  it.  If  there  be  a  people  on  earth  whose  more  especial  duty  it 
is  to  be  at  all  times  prepared  to  defend  the  rights  with  which  they  are 
blessed,  and  to  surpass  all  others  in  sustaining  the  necessary  burthens, 
and  in  submitting  to  sacrifices  to  make  such  preparations,  it  is  undoubt- 
edly the  people  of  those  States. 

"  When  we  see  that  a  civil  war  of  the  most  frightful  character  rages 
from  the  Adriatic  to  the  Black  Sea;  that  strong  symptoms  of  war  appear 
in  other  parts,  proceeding  from  causes  which,  should  it  break  out,  may 
become  general  and  be  of  long  duration;  that  the  war  still  continues 
between  Spain  and  the  independent  governments,  her  late  Provinces, 

93 


§  53  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  n. 

§  53.  Russia's  colonization  on  the  Pacific  Coast  stopped. — 

In  1823,  even  prior  to  the  delivery  of  President  Monroe's  mes- 

in  this  hemisphere;  that  it  is  likewise  menaced  between  Portugal  and 
Brazil,  in  consequence  of  the  attempt  of  the  latter  to  dismember  itself 
from  the  former,  aud  that  a  system  of  piracy  of  great  extent  is  main- 
taiued  in  the  neighboring  seas,  which  will  require  equal  vigilance  aud 
decision  to  suppress  it,  the  reasons  for  sustaining  the  attitude  which  we 
now  hold  and  for  pushing  forward  all  our  measures  of  defence  with  the 
utmost  vigor  appear  to  me  to  acquire  new  force. 

"  The  United  States  owe  to  the  world  a  great  example,  and,  by  means 
thereof,  to  the  cause  of  liberty  and  humanity  a  generous  support.  Tliey 
have  so  far  succeeded  to  the  satisfaction  of  the  virtuous  aud  enlightened 
of  every  country.  There  is  no  reason  to  doubt  that  their  whole  move- 
ment will  be  regulated  by  a  sacred  regard  to  principle,  all  our  institu- 
tions being  founded  on  that  basis.  The  ability  to  support  our  own 
cause  under  any  trial  to  which  it  may  be  exposed  is  the  great  point  on 
which  the  public  solicitude  rests.  It  has  been  often  charged  against 
free  governments  that  they  have  neither  the  foresight  nor  the  virtue  to 
provide  at  the  proper  season  for  great  emergencies;  that  their  course  is 
improvident  and  expensive;  that  war  will  always  find  them  unprepared, 
and,  whatever  may  be  its  calamities,  that  its  terrible  warnings  will  be 
disregarded  and  forgotten  as  soon  as  peace  returns.  I  have  full  con- 
fidence that  this  charge  so  far  as  relates  to  the  United  States  will  be 
shown  to  be  utterly  destitute  of  truth."  Richardson's  Messages  and 
Papers  of  the  Presidents,  vol.  II.,  pp.  192-195. 

A  year  after  the  doctrine  had  been  announced,  President  Monroe,  in 
his  last  annual  message  transmitted  to  Congress,  December  7,  1824,  re- 
ferred to  the  effect  of  the  announcement  as  follows: 

"In  turning  our  attention  to  the  condition  of  the  civilized  world,  in 
which  the  United  States  have  always  taken  a  deep  interest,  it  is  grati- 
fying to  see  how  large  a  portion  of  it  is  blessed  with  peace.  The  only 
wars  which  now  exist  within  thnt  limit  are  those  between  Turkey  and 
Greece,  in  Europe,  and  between  Spain  and  the  new  Governments,  our 
neighbors,  in  this  hemisphere.  In  both  these  wars  the  cause  of  inde- 
pendence, of  liberty  and  humanity,  continues  to  prevail.  The  success 
of  Greece,  when  the  relative  population  of  the  contending  parties  is 
considered,  commands  our  admiration  and  applause,  and  that  it  has 
had  a  similar  effect  with  the  neighboring  powers  is  obvious.  The  feel- 
ing of  the  whole  civilized  world  is  excited  in  a  high  degree  in  their 
favor.  May  we  not  hope  that  these  sentiments,  winning  on  the  hearts 
of  their  respective  Governments,  may  lead  to  a  more  decisive  result; 
that  they  may  produce  an  accord  among  them  to  replace  Greece  on  the 
ground  which  she  formerly  held,  and  to  which  her  heroic  exertions  at 
this  day  so  eminently  entitle  her? 

"  With  respect  to  the  contest  to  which  our  neighbors  are  a  party,  it 
is  evident  that  Spain  as  a  power  is  scarcely  felt  in  it.  These  new  States 
had  completely  achieved  their  independence  before  it  was  acknowledged 
by  the  United  States,  and  they  have  since  maintained  it  with  little  for- 

94 


CH.  II.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  53 

sage  to  Congress,  it  had  been  quietly  communicated  by  Sec- 
retary John  Quincy  Adams  to  Russia,  and  Russian  coloniza- 

eign  pressure.  The  disturbances  which  have  appeared  in  certain  por- 
tions of  that  vast  territory  have  proceeded  from  internal  causes,  which 
had  their  origin  in  their  former  Governments  and  have  not  yet  been 
thoroughly  removed.  It  is  manifest  that  these  causes  are  daily  losing 
their  effect,  and  that  these  new  States  are  settling  down  under  Govern- 
ments elective  and  representative  in  every  branch,  similar  to  our  own. 
In  this  course  we  ardently  wisli  them  to  persevere,  under  a  firm  con- 
viction that  it  will  promote  their  happiness.  In  this,  their  career,  how- 
ever, we  have  not  interfered,  believiug  that  every  people  have  a  right  to 
institute  for  themselves  the  government  which,  in  their  judgment,  may 
suit  them  best.  Our  example  is  before  them,  of  the  good  effect  of  which, 
being  our  neighbors,  they  are  competent  judges,  and  to  their  judgment 
we  leave  it,  in  the  expectation  that  other  powers  will  pursue  the  same 
policy.  The  deep  interest  which  we  take  in  their  independence,  which 
we  have  acknowledged,  and  in  their  enjoyment  of  all  the  rights  inci- 
dent thereto,  especially  in  the  very  important  one  of  instituting  their 
own  Governments,  has  been  declared,  and  is  known  to  the  world. 
Separated  as  we  are  from  Europe  by  the  great  Atlantic  Ocean,  we 
can  have  no  concern  in  the  wars  of  the  European  Gloveruments  nor 
in  the  causes  which  produce  tliem.  Tlie  balance  of  power  between 
them,  into  whichever  scale  it  may  turn  in  its  various  vibrations, 
cannot  affect  us.  It  is  the  interest  of  the  United  States  to  pi*e- 
serve  the  most  friendly  relations  with  every  power  and  on  condi- 
tions fair,  equal,  and  applicable  to  all.  But  in  regard  to  our 
neighbors  our  situation  is  different.  It  is  impossible  for  the  Eu- 
ropean Governments  to  interfere  in  their  concerns,  especially  in 
those  alluded  to,  which  are  vital,  without  affectin?  us  ;  indeed, 
the  motive  which  might  induce  such  interference  in  the  present 
state  of  the  war  between  the  parties,  if  a  war  it  may  be  called, 
would  appear  to  be  equally  applicable  to  us.  It  is  gratifying  to 
know  that  some  of  the  powers  with  whom  we  enjoy  a  very  friendly 
intercourse,  and  to  whom  these  views  have  been  communicated, 
have  api)eared  to  acquiesce  in  them."  Richardson's  Messages  and 
Papers  of  the  Presidents,  Vol.  II.,  pp.  259,  260. 

THE  MONROE  DOCTRINE. 

It  is  an  absolute  impossibility  to  successfully  attempt  to  write  upon 
any  branch  of  the  political  history  of  the  United  States  without  making 
more  or  less  extended  reference  to  the  original  announcement  of  the 
Monroe  Doctrine  and  the  subsequent  application  thereof.  The  famous 
enunciation,  although  contained  in  a  few  brief  paragraplis  of  an  annual 
message  of  one  of  the  Presidents,  hns  been  the  basis  of  hundreds  of  ar- 
ticles, speeches,  and  even  entire  volumes  which  have  been  devoted  to 
discussing  "the  origin,  meaning,  and  application  of  the  Monroe  Doc- 
trine "  ;  the  last  sentence  is  quoted  as  it  is  the  title  of  a  brochure  upon 
the  subject  published  by  Professor  John  Bach  McMaster  in  1896.     Nor 

95 


§  53  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  H. 

tion  upon  the  Pacific  Coast  was  thenceforth  confined  to  its 
then  existing  limits.  ^ 

§  53.  I  ence  between  Secretary  Adams  and 

1  See  references  to  correspond-  I  our  Minister  to  Russia,  p.  97,  post. 
has  this  discussion  been  confined  to  Americans,  or  to  the  United  States; 
reference  to  it  will  be  found  in  nearly  all  of  the  works  on  international 
law;  and  varied  opinions  have  been  delivered  in  regard  to  it  by  Ameri- 
can, English  and  Continental  authorities. 

Tbequesticm  whether  or  not  the  Monroe  Doctrine  actually  exists  and  is 
as  applicable  to-day  to  similar  cases,  as  it  was  in  1823,  lias  been  presented 
to  the  American  people  on  several  occasions.  One  of  these  was  in  De- 
cember, 1895,  when  Mr.  Cleveland's  message  and  Lord  Salisbury's  letter 
in  regard  to  the  Venezuela  boundaiy  brought  the  issue  forward  in  a 
more  practical  manner  than  it  had  been  presented  for  many  years. 

In  the  brochure  above  referred  to  Professor  McMaster  said:  "The 
crisis  is  certainly  a  serious  one,  and  an  examination  of  these  views  is  not 
untimely.  The  hour  has  come  for  the  people  of  the  United  States  to 
decide  once  for  all  whether  there  is  or  is  not  a  Monroe  Doctrine.  If 
there  is,  it  should  be  stated  as  clearly  and  precisely  as  possible.  If  there 
is  not,  then  it  becomes  us  to  say  so  frankly  and  at  once." 

Since  that  time  if  any  answer  has  been  given  to  Professor  McMaster's 
question  it  certainly  i.s  to  the  effect  that  the  Monroe  Doctrine  does  exist; 
that  it  is  recognized  as  existing  not  only  by  the  people  of  the  United 
States,  but  also  by  the  governing  powers  of  other  nations;  and  also 
that  it  has  been  reannounced,  and  so  reaccepted,  as  "the  traditional 
policy  of  the  United  States  in  regard  to  affairs  of  the  Western  Hemi- 
sphere" as  was  evidenced  by  the  reservation  under  which  the  United 
States  acceded  to  The  Hague  Treaties.  (§58  post  and  footnotes  thereto 
containing  extract  from  Holl's  Peace  Conference  at  The  Hague. ) 

The  Monroe  Doctrine,  properly  so-called,  ever  since  December  2, 1823, 
when  it  was  formal  ly  announced  ( in  the  form  above  quoted )  in  the  seventh 
annual  message  transmitted  to  Congress  by  President  James  Monroe,  was 
not  the  formulation  of  any  new  discovery  of  the  political  rights  and  power 
of  the  United  States,  but  was  the  enunciation  of  principles  which  had 
already  been  adopted  by  the  administration  and  which  had  been  com- 
municated to  the  other  powers,  who  had  acknowledged  them  as  reason- 
able and  proper  in  view  of  the  unique  position  which  the  United  States 
then  occupied  in  this  hemisphere,  which  it  has  ever  since  occupied,  and 
which  it  will  continue  to  occupy  so  long  as  the  American  people  them- 
selves recognize  the  wisdom  and  justice  of  the  policy,  our  right  to  as- 
sert which  no  other  power  dares  to  directly  deny,  and  few  even  dare  to 
indirectly  question. 

It  would  be  far  beyond  the  scope  of  a  footnote  to  give  even  a  brief  re- 
view of  the  causes  leading  up  to  the  announcement  of  the  Monroe  Doc- 
trine and  of  the  occasions  on  which  it  has  been  applied  since  it  was  first 
uttered  as  an  effective  warning  of  "  hands  off "  to  the  allied  powers  who 
were  then  masquerading  under  the  gwasi-religious,  but  wholly  hypo- 
critical guise  of  the  Holy  Alliance.    A  few  dates  and  facts  will  be  collated, 

96 


CH.  II. J  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  54 

§  Si.  England,  Central  and  South  America,  and  tiie  Mon- 
roe Doctrine. — Uuiiug  the  fifties,  wlien  Engiaud's  protecto- 

and  references  given  to  the  original  documents,  and  to  the  writings  of 
those  who  have  discussed  the  subject  at  length. 

I.    ANNOUNCEMENT  OF  THE  MONBOE  DOCTKINE. 

The  Monroe  Doctrine  cannot  be  understood,  nor  can  its  full  force  and 
effect  be  appreciated  without  a  thorough  knowledge  of  the  political 
conditions  existing  in  the  first  quarter  of  the  nineteenth  century  in 
Europe  and  America,  both  North  and  South. 

The  doctrine  as  enunciated  in  President  Monroe's  message  was  neither 
new  nor  unfamiliar,  nor  was  it  announced  without  ijremonitiou  and 
warnings. 

It  had  been  foreshadowed  in  the  President's  annual  message  of  the 
year  previous,  as  appears  by  the  paragraph  quoted  from  the  message 
of  1822,  as  well  as  in  the  correspondence  which  John  Quincy  Adams  as 
Secretary  of  State  had  conducted  with  Kussia  in  regard  to  Russian 
colonization  on  the  northwest  Pacific  coast,  and  with  Eugland  in  regard 
to  the  recognition  of  the  South  American  Republics,  over  which  Spain 
first  claimed  dominion,  although  she  could  not  exei'cise  it.  (See  Pro- 
fessor Snow's  article  and  Jolin  Quiucy  Adams'  diary.) 

The  attitude  of  the  European  Powers  in  regard  to  those  Republics  and 
their  relations  with  Spain  forced  the  United  States  into  taking  a  corre- 
sponding attitude;  it  is  to  the  lasting  credit  of  the  United  States  that, 
earlier  than  any  other  country,  it  enacted  strict  neutrality  laws  and 
vigorously  enforced  them;  in  fact,  the  neutrality  laws  of  1190,  1818, 
and  1838  were  not  only  the  first  crystallization  into  statutory  form  of  the 
principles  of  neutrality,  which  had  been  recognized  as  elements  of  in- 
ternational law,  but  they  have  been  taken  as  the  models  for  the  neutral- 
ity laws  of  many  other  countries.     (See  also  §§  5281  etseq.  U.  S.  Rev.  St.) 

The  neutrality  of  the  United  States  in  the  Spanish-American  wars 
had  been  maintained  at  great  cost,  and  in  spite  of  the  sympathy  which 
a  majority  of  the  people  felt  towards  our  struggling  and  weaker  sisters 
who  were  following  in  our  own  footsteps  and  whose  desires  for  free- 
dom as  a  general  rule  found  utterance  in  proclamations  which  were 
simply  paraphrases  of  the  Declaration  of  Independence. 

No  one  championed  the  cause  of  these  junior  members  of  the  Amer- 
ican family  of  republics  so  earnestly  or  as  ably  as  Henry  Clay,  whose 
speech  in  the  Senate  of  the  United  States  on  March  2.5,  1818,  in  favor  of 
recognizing  the  Republics  of  Buenos  Ayres  and  of  La  Plata,  is  not  only 
one  of  the  most  eloquent  addresses  ever  delivered  by  that  gifted  states- 
man, but  one  which  ranks  among  the  masterpieces  of  American  oratory. 

Neutrality  was  also  ostensibly  preserved  by  the  European  countries, 
but  the  emotions  of  the  jieople  were  suppressed  by  governmental  espio- 
nage and  the  sympathy  of  the  governing  powers  was  entirely  with 
Spain. 

Alarmed  by  the  rapid  spread  of  republican  tendencies  in  Europe  as 
well  as  in  America,  "  their  Majesties,  the  Emperor  of  Austria,  the  King 

7  97 


§  54  TREAT Y-MAKI^'G  POWEH  OF  THE  U.  S.  [CH.  II. 

rate  of  the  Mosquito  Coast  and  other  portions  of  Central 
America  created  some  anxiety  in  our  minds,  the  Monroe 

of  Prussia  and  the  Emperor  of  Russia,"  met  at  Pai'is  to  consider  some 
method  of  averting  the  further  spread  of  the  desire  for  liberty  which  by 
them  was  considered  as  a  disease.  On  September  26,  1815,  they  signed 
personally  an  agreement  which  from  its  first  invocatory  clause,  "In  the 
name  of  the  Holy  and  Invisible  Trinity,"  and  its  final  woi'ds,  "this 
Holy  Alliance,"  has  ever  since  that  date  been  known  as  the  "  Treaty  of 
the  Holy  Alliance."'' 

The  objects  of  this  remarkable  treaty,  which,  according  to  Capefigue, 
and  as  quoted  by  Professor  Snow,  is  entirely  in  the  handwriting  of  the 
Emperor  Alexander,  with  corrections  made  by  Madame  Crudner,  were 
stated  in  Articles  1,  2  and  3  as  follows: 

"  Article  I.  In  conformity  to  the  words  of  the  Holy  Scriptures,  which 
command  all  men  to  regard  one  another  as  brethren,  the  three  contract- 
ing monarchs  will  remain  united,  by  the  bonds  of  a  true  and  indissol- 
uble fraternity;  and,  considering  each  other  as  compatriots,  they  will 
lend  one  another,  on  every  occasion,  and  in  every  i>lace,  assistance,  aid, 
and  support;  and,  regarding  the  subjects  aud  armies,  as  the  fathers  of 
their  families,  they  will  govern  them  in  the  spirit  of  fraternity  with 
which  they  are  animated,  for  the  protection  of  religion,  peace  and  jus- 
tice. 

"Article  II.  Therefore,  the  only  governing  principles  between  the 
above-mentioned  governments  and  their  subjects,  shall  be  that  of  ren- 
dering reciprocal  services;  of  testifying,  by  an  unalterable  beneficence, 
the  mutual  affection  with  which  they  ought  to  be  animated ;  of  consider- 
ing all  as  only  the  members  of  one  Christian  nation,  the  three  allied 
powers  looking  upon  themselves  as  delegated  by  Providence  to  govern 
three  branches  of  the  same  family,  to  wit:  Austria,  Prussia,  aud  Russia, 
confessing,  likewise,  that  the  Christian  nation,  of  which  they  and  their 
people  form  a  part,  have  really  no  other  sovereign  than  Him  to  whom 
alone  power  belongs  of  right,  because  in  Him  alone  are  found  all  the 
treasures  of  love,  of  science  and  of  wisdom,  that  is  to  say,  God,  uur  Di- 
vine Saviour,  Jesus  Christ,  the  word  of  the  Most  High,  the  word  of  Life. 

"  Their  Majesties,  therefore,  recommend,  with  the  most  tender  solici- 
tude, to  their  people,  as  the  only  means  of  enjoying  that  peace  which 
springs  from  a  good  conscience,  and  which  alone  is  durable,  to  fortify 
themselves  every  day  more  and  more  in  the  principles  and  exercise  of 
the  duties  whicli  the  divine  Saviour  lias  pointed  out  to  us. 

"Article  III.  All  powers  which  wish  solemnly  to  profess  the  sacred 
principles  which  have  delegated  this  act,  and  who  shall  acknowledge 
how  important  it  is  to  the  happiness  of  nations,  too  long  disturbed,  that 
these  truths  sliall  henceforth  exercise  upon  human  destinies,  all  the 
influence  which  belongs  to  them,  shall  be  received  with  as  much  readi- 
ness as  affection,  into  this  holy  alliance.'''' 

Other  Continental  Powers  were  asked  to  accede  to  the  treaty:  on  No- 
vember 22,  1822,  an  additional  secret  treaty  was  entered  into  at  Verona 
by  representatives  of  Austria,  France,  Prussia  and  Russia,  in  which  the 

98 


CH.  II.]  SOVEKEIGNTY  AND  TERRITORIAL  ACQUISITION.  §  54 

Doctrine  was  asserted,  with  the  desired,  eflfect  that  the  pro- 
tectorate was  withdrawn,  although  that  result  was  not  ac- 

vague  expressions  of  the  Treaty  of  Paris  of  1815  were  expressed  in  a  some- 
what more  praciical  form. 

This  was  signed  on  behalf  of  tlieir  respective  sovereigns  by  four  of 
the  most  famous  diplomats  that  Europe. has  ever  known,  to  wit:  Met- 
ternich  for  Austria,  Chateaubriand  for  France,  Bernstet  for  Prussia,  and 
Nesselrode  for  Russia. 

The  original  treaty  to  provide  for  the  peace  of  Europe  had  been  signed 
at  Cliaraout,  France,  on  Marcli  1,  1814.  England,  Austria,  Russia  and 
Prussia  were  the  signatory  Powers;  it  was  aimed  largely  at  the  great 
ascendency  over  Euroj)eau  matters  which  France  was  tben  aspiring  to, 
and  also  to  suppress  the  liberal  ideas  awakened  by  the  French  Revolu- 
tion and  the  wars  of  Napoleon.  It  was  renewed  at  Vienna,  March  25, 
1815,  at  the  commencement  of  the  "One  Hundred  Days,"  just  after 
Napoleon  had  landed  on  his  return  from  Elba. 

It  was  again  renewed  at  Paris,  November  20,  1815,  after  the  battle  of 
Waterloo  had  forever  removed  Napoleon  as  a  factor  in  European  poli- 
tics. 

These  last  mentioned  treaties,  especially  that  of  March,  1815,  have  some- 
times been  erroneously  referred  to  as  the  "  Holy  Alliance;  "  the  com- 
bination existing  under  that  title,  liowever,  was  confined  to  the  treaties 
of  Paris  of  September,  1815,  and  of  Verona  of  November,  1822. 

The  treaty  of  November  20,  1815,  provided  for  frequent  congresses 
of  the  European  Powers  to  regulate  the  affairs  of  Europe;  pursuant 
thereto  a  Congress  was  held  at  Aix-la-Chapelle,  in  October,  1818.  Great 
efforts  were  made  by  the  Continental  Powers  to  induce  Great  Britain  to 
join  in  the  "  Holy  Alliance,"  but  the  terms  were  too  vague,  and  as  the 
Duke  of  Wellington  told  the  Emperor  Alexander,  there  was  no  definite 
basis  which  justified  the  sovereign  of  Great  Britain  in  acceding  to  it  in 
such  manner  that  his  action  would  be  understood  or  ratified  by  Parlia- 
ment. 

Meanwhile,  however,  Louis  XVIII.  joined  the  alliance  on  behalf  of 
France,  and  many  secondary  Powers  of  Europe  also  acceded  to  the  treaty. 
Thus  the  whole  of  continental  Europe  was  a  unit  in  sustaining  mo- 
narchical institutions;  in  1823,  after  the  Kings  of  Spain  and  Portugal  Iiad 
been  restored  to  their  thrones,  principally  through  French  intervention, 
the  question  of  aiding  Spain  in  a  last  effort  to  reconquer  her  rebellious 
provinces  in  America  was  brouglit  up  and  a  meeting  of  the  Powers  to 
consider  tlie  advisability  of  joint  action  in  that  respect  was  proposed. 
It  was  this  proposition,  the  knowledge  of  which  was  acquired  by  the 
Monroe  administration,  that  furnished  the  occasion  for  announcing  the 
principles  by  which  this  country  would  be  guided  in  case  the  Powers 
of  Europe  united  in  intervening  in  the  contest  between  Spain  and  her 
provinces,  in  regard  to  which  all  of  those  Powers,  as  well  as  the  United 
States,  had  up  to  that  time  remained  neutral. 

Separate  contests  were  being  waged  for  independence  in  Venezuela, 
New  Guiana,  Mexico,  Chile  and  Peru.    It  would  be  interesting  to  review 

99 


^  54  TIlEATY-iMx\.KmG  POWER  OF  THE  U.  S.  [CH.  II. 

coinplished    without  a  muttered  protest.^    In  1896,  Lord 
Salisbury  expressed  bis  doubts  as  to  our  right  to  interfere 


pp.  217  et  seq.  of  Lindley  Miller 
Keasbey's  book  on  the  Nicaragua 
Canal  aud  the  Monroe  Doctrine, 
G.  P.  Putnam,  1896.  See  also  ref- 
erences in  footnote  1  to  §  52  of  this 
chapter,  page  103. 


§54. 

1  Central  American  affairs  and  the 
Enlistment  Questiou,  Washington, 
1856;  see  also  other  congressional 
documents  relating  to  this  subject 
referred  to  in  Chapter  XI.  entitled 
The  Central  An;erican  Imbroglio, 
these  wars  for  independence — to  recount  the  deeds  of  valor  and  patriot- 
ism of  Miranda,  Bolivar,  San  Martin  and  the  other  heroes  struggling  for 
liberty  in  South  America,  but  this  is  not  the  place  for  such  an  extended 
history.  We  can  only  consider  the  effects  of  those  wars  as  they  affected 
our  political  and  diplomatic  relations  with  the  other  Powers.  For  an 
interesting  history  of  these  wars  the  reader  is  referred  to  Hezekiah  But- 
terwurth's  Political  History  of  South  America  (N.  Y.,  Doubleday  &  3Ic- 
Clure,  1898),  which  also  contains  a  bibliography  which  will  greatly  aid 
any  one  desiring  to  pursue  this  branch  of  the  subject  in  more  extended 
research.  The  result  of  the  announcement  that  the  United  States  would 
take  up  the  defence  of  the  South  American  Republics  in  case  the  Euro- 
pean powers  abandoned  their  position  of  neutrality,  had  the  desired 
effect.  England  recognized  the  Republics  as  well  as  the  United  States, 
and  before  long  commercial  and  diplomatic  relations  were  established 
which  have  ever  since  been  maintained  with  occasional,  but  fortunately 
n<»t  serious,  interruptions.  The  announcement  was  received  with  satis- 
faction not  only  in  the  United  States,  but  also  in  England.  In  fact. 
Canning,  who  whs  then  in  the  Foreign  Office  of  Great  Britain,  claimed  to 
have  originated  the  idea  himself  aud  to  have  urged  the  announcement 
through  Mr.  Rush,  our  then  minister  to  England;  he  is  even  credited  with 
having  said  that  he  called  the  New  World  into  existence  to  redress  the 
balance  of  the  Old. 

Undoubtedly  he  greatly  favored  the  announcement  and  was  glad  of 
the  opportunity  of  recognizing  the  Republics.  Both  Professor  Snow  aud 
ex-Secretary  of  State,  John  W.  Foster  (A  Century  of  American  Diplo- 
macy, 1900,  Chapter  XII.,  on  The  Monroe  Doctrine)  have  shown  that  the 
Monroe  Doctrine  was  essentially  of  American  origin  and  American  con- 
summation. Mi\  Foster  says  in  regard  to  effect  of  the  announcement, 
and  as  to  Mr.  Canning's  connection  therewith  (on  pp.  447-449)  as  follows: 

"  While  the  declaration  is  very  broad  in  its  application,  it  is  very  pre- 
cise and  restricted  as  to  its  cause.  It  is  America  for  the  Amerfcans, 
because  otherwise  (the  peace  and  safety  of)  the  United  States  would  be 
endangered. 

"  President  Monroe  might  have  communicated  this  declaration  to  the 
allied  powers  in  the  usual  diplomatic  form,  through  the  Department  of 
State,  to  our  Ministers  at  the  various  European  capitals,  but  he  wisely 
adopted  the  form  of  its  promulgation  in  his  annual  message  to  Congress. 
It  thuS' became  a  notice,  not  to  the  Holy  Alliance  only,  but  to  the  whole 
world,  of  the  policy  of  the  United  States. 
100 


CH.  II.]  SOVEREIGNTY  AND  TERHITOIMAL  ACQUISITION.  §  54 

with  England's  arbitrary  occupation  of  the  disputed  territory 
between  Venezuela  and  British  Guiana ;  the  question  how- 

"Few,  if  any,  official  utterances  of  the  century  have  had  such  general 
and  lasting  influence.  When  the  Message  was  published  in  London  it 
received  universal  commendation.  Said  one  of  tlie  journals:  '  We  shall 
hear  no  more  of  a  Congress  to  settle  the  fate  of  the  Soutli  American 
States;'  another:  'It is  worthy  the  occasion  and  of  the  people  destined 
to  occupy  so  large  a  space  in  the  future  liistory  of  the  world.'  Mr.  Can- 
ning's biographer,  in  recording  the  effect  of  its  publication  in  Europe, 
says  that,  coupled  with  the  refusal  of  England  to  take  part  in  the  pro- 
posed Congress  to  discuss  Spanish-American  affairs,  it  effectually  put  an 
end  to  the  project.  Mr.  Brougham,  the  English  statesman,  said:  'The 
question  with  regard  to  South  America  is  now  disposed  of,  or  nearly  so, 
for  an  event  has  recently  happened  than  which  no  event  has  dispensed 
greater  joy,  exultation,  and  gratitude  over  all  the  freemen  of  Europe; 
that  event,  which  is  decisive  on  the  subject  in  respect  of  South  Amer- 
ica, is  the  message  of  the  President  of  the  United  States  to  Congress.' 
It  is  further  reported  that '  the  South  American  deputies  in  London  were 
wild  with  joy,  and  South  American  securities  of  every  sort  rose  in  value.' 

"  The  manner  in  which  it  was  received  in  the  United  States  was  de- 
scribed by  Mr.  Webster,  in  a  speech  delivered  in  the  Senate  three  years 
later,  as  follows:  '  It  met,  sir,  with  entire  concurrence  and  hearty  appro- 
bation of  the  country.  One  general  glow  of  exultation,  one  universal 
feeling  of  gratified  love  of  liberty,  one  conscious  and  proud  perception 
of  the  consideration  which  our  country  possessed,  and  of  the  respect 
and  honor  which  belonged  to  it,  penetrated  nil  bosoms.'  (3  Webster's 
Works,  178. )  An  undue  share  of  credit  has  been  assigned  to  Mr.  Canning 
for  the  promulgation  of  the  Monroe  Doctrine,  and  to  him  has  even  been 
ascribed  the  origin  or  first  suggestion  of  the  idea.  But  it  has  been  seen 
that  fifteen  years  before.  President  Jefferson  had  set  forth  the  policy 
in  much  broader  terms  than  those  contained  in  Canning's  proposal  to 
Rush.  The  published  diplomatic  correspondence  shows  that  Secre- 
tary Adams  was  fully  informed  as  to  the  designs  of  the  Holy  Alliance, 
and  that  six  months  before  that  proposal  was  broached  he  had  given 
instructions  to  our  Minister  in  Spain  to  make  known  at  the  proper  time 
that  our  government  would  oppose  any  forcible  intervention  in  Amer- 
ican affairs  or  the  transfer  of  any  of  the  Spanish  possessions  to  the 
European  powers.  Canning's  proposal  went  no  further  than  a  protest 
against  the  transfer  of  any  of  the  colonies  to  other  powers,  which  was 
ranch  narrower  than  Monroe's  message;  and  the  correspondence  makes 
it  plain  that  Great  Britain  was  wholly  influenced  by  a  desire  to  retain 
and  enlarge  its  trade  and  by  its  jealousy  of  France." 

See  also,  as  to  effect  of  announcement  and  extracts  from  European 
publications.  Professor  McMaster's  Origin,  Meaning  and  Application  of 
the  Monroe  Doctrine,  Philadelphia,  1896. 

The  Monroe  Doctrine  has  been  asserted  on  numerous  occasions  be- 
tween tha  time  when  it  was  first  enunciated  as  a  principle  of  American 
international  diplomacy  until  its  recent  reaffirmance  at  The  Hague  un- 

101 


§  54  TREATY-MAKING  TOWEE  OF  THE  U.  S.  [CH,  n. 

ever  was  finall}^,  on  our  insistence,  referred  to  the  Arbitra- 
tion Tribunal,  which  has  recently  rendered  its  award,  and 

der  the  style  of  "  Traditional  policy  of  the  United  States  in  regard  to 
American  affairs." 

The  occasions  upon  which  it  has  been  asserted  can  be  divided  into 
two  classes.  First,  when  it  has  been  asserted  in  regard  to  the  efforts 
of  European  powers  to  obtain  a  foothold  or  to  increase  their  colonial 
possessions  in  North,  South  or  Central  America;  second,  when  it  has 
been  asserted  in  legard  to  the  relations  between  the  United  States  and 
other  republics  of  the  Western  Hemisphere,  and  the  right  of  the  United 
States, as  the  most  powerful  Government  in  America,  to  regulate  af- 
fairs for  the  purpose  of  maintaining  peace  and  averting  the  evils  of  war. 

A  few  of  these  instances  only  can  be  referred  to  in  this  note.  The 
reader  is  referred  for  a  more  detailed  history  of  the  application  of  the 
Monroe  Doctrine  to  the  authorities  referred  to  at  the  end  of  this  note; 
special  reference  is  made  at  this  point  to  Professor  Freeman  Snow's 
Treatise  on  American  Diplomacy,  published  in  1894,  over  two  hundred 
pages  of  which  are  devoted  to  a  critical  review  of  the  Monroe  Doctrine 
in  its  various  aspects  both  as  to  origin  and  application,  and  which  has 
greatly  aided  the  author  in  making  his  own  investigations  in  regard  to 
this  subject. 

THE  PANAMA  CONGKESS. 

Within  a  vei-y  brief  period  after  the  Monroe  Doctrine  was  enunciated 
occasions  arose  for  its  practical  application.  In  1826  invitations  were 
extended  by  some  of  the  South  American  Republics  to  the  United  States 
to  meet  representatives  of  the  other  Republics  in  a  Congress  which  was 
to  be  held  at  Panama  to  effect  a  general  union  of  all  the  Republics.  It 
was  suggested  that  the  Congress  would  consider,  amongst  other  things, 
the  desirability  of  "  combining  the  forces  of  the  Republics,  to  free  the 
Islands  of  Puerto  Rico  and  Cuba  from  the  yoke  of  Spain  ...  to 
take  measures  for  joining  in  a  prosecution  of  the  war  at  sea  and  on  the 
coasts  of  Spain,  and  to  determine  whether  these  measures  should  also 
be  extended  to  the  Canary  and  Philippine  Islands."  These  objects 
were  wholly  beyond  the  objects,  desires  or  rights  of  the  United  States, 
and  were  entirely  inconsistent  with  one  of  the  other  objects  stated  in 
the  call  for  the  Congress;  to  wit,  "  to  take  into  consideration  the  means 
of  making  effectual  the  declaration  of  the  President  of  the  United  States, 
respecting  any  ulterior  design  of  a  foreign  power  to  colonize  any  por- 
tion of  this  continent,  and  also  the  means  of  resisting  all  interference 
from  abroad  with  the  domestic  concerns  of  the  American  Governments." 

President  John  Quincy  Arlams,  Mr.  Monroe's  successor,  however  ac- 
cepted the  invitation  and  stated  in  a  message  to  Congress  that  ministers 
on  the  part  of  the  United  States  "  would  be  commissioned  to  attend  at 
those  deliberations  and  to  take  part  in  them  so  far  as  may  be  compatible 
with  that  neutrality,  from  which  it  is  neither  our  intention  nor  the  de- 
sire of  the  other  American  States   that  we  should  depart." 

The  president  had  power  to  appoint  commissioners,  but  the  appropria- 
102 


CH.  n.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  54 

thus  amicably  settled  a  question  which  for  a  quarter  of  a 
century  has  threatened  from  time  to  time  to  plunge  at  least 
three  countries  into  war.^ 

2  See    reference   to    Lord    Salis- 1  bury's  letter  in  footnote  1  to  §  52, 

I  pages  107-8. 

tion  for  their  expenses  had  to  be  made  by  Congress.  When  the  special 
message  was  sent  to  the  Senate  nominating  Richardson  C.  Anderson  and 
John  Sergeant  as  envoys  to  the  Congress,  a  resolution  was  at  once  of- 
fered as  follows:  "-Resolved,  That  it  is  not  expedient  at  this  time  for 
the  United  States  to  send  any  ministers  to  the  Congress  of  American 
nations  assembled  at  Panama." 

While  this  resolution  was  pending  in  the  Senate,  the  following  reso- 
lution was  introduced  in  the  House:  "  Resolved,  That  in  the  opinion 
of  this  House,  it  is  expedient  to  appropriate  the  funds  necessary  to  en- 
able tlie  President  of  the  United  States  to  send  ministers  to  the  Con- 
gress at  Panama." 

The  appropriation  finally  passed  Congress,  and  commissioners  were 
appointed;  on  account  of  the  delay,  however,  our  representatives  did  not 
actually  participate  in  the  meeting.  The  Congress  met  at  Panama, 
but  without  accomplishing  any  actual  results;  it  adjourned  to  meet  at 
Tacubaya  the  following  year,  but  no  adjourned  meeting  was  held,  and 
as  Professor  Snow  says  in  concluding  his  chapter  on  this  episode,  "  Thus 
ended  the  first  attempt  to  form  an  alliance  of  American  states.  The 
Monroe  Doctrine  was  forgotten  for  the  time;  and  the  Spanish- Americans 
were  left  to  work  out  their  destiny  in  their  own  way,  and  to  acquire  by 
long  training  in  the  school  of  experience  the  cai^acity  for  self-government 
which  they  lacked  at  that  time." 

The  details  of  the  entire  history  of  the  Panama  Congress  are  very 
interesting,  and,  according  to  a  note  in  Professor  Snow's  article  ( page  312) 
the  following  documents  contain  a  complete  history  of  the  conference. 

"The  documents  and  details  of  the  Panama  Congress  are  given  in 
full  in  the  4th  volume  (Historical  Appendix)  of  the  proceedings  of  the 
International  American  Conference.  See  also:  Lyman's  Diplomacy  of 
the  United  States,  II.,  467;  American  Review  and  Whig  Journal,  Janu- 
ary, 1840;  A.  W.Young:  American  Statesman,  352;  Am.  State  Pap.  VI., 
834-910;  Benton's  Debates,  VIIL;  Benton's  View,!.;  Webster's  Works, 
III.,  178;  Niles's  Register.'" 

OTHER  CONGRESSES    OF  AMERICAN  REPUBLICS. 

There  have  been  a  number  of  American  congresses  since  the  attempt 
to  hold  one  in  1825-26. 

Professor  Snow  refers  to  them  as  follows :  ( 1 )  The  Congress  of  Lima, 
1847;  (2)  the  Continental  Treaty  of  1856,  which  to  some  extent  showed 
"  a  spirit  of  hostility  to  the  United  States,"  resulting  from  the  Walker 
expeditions  into  Central  America;  (3)  the  Congress  of  Lima,  1864; 
(4)  proposed  Congress  of  Panama,  1881;  (5)  the  proposed  Congress  at 
Washington,  1882;  the  International  American  Conference,  18fl0. 

103 


§  55  TREATY-MzVKrNG  POWER  OF  THE  U.  S.         [CH.  II. 

§  55.  Spain,  Cuba,  and  the  Monroe  Doctrine. — In  1852, 
when  we  had  reason  to  suspect  that  Spain  contemplated  a 

TKANS-ISTHMIAN  COMMUNICATIONS  AND  THE  MONKOE  DOCTKIXE. 

The  Mouioe  Doctrine  has  always  been  asserted  by  the  United  States 
in  regard  to  the  right  of  transit  over  the  Isthmus  of  Panama  and  through 
the  territory  of  Nicaragua,  and  in  fact  generally  as  to  any  trans-Isth- 
mian communication. 

Reference  to  this  will  be  found  in  Professor  Snow's  book,  page  326, 
in  Lindley  Miller  Keasbey's  Xicanigua  Canal  and  the  Monroe  Doctrine, 
ex-Secretary  of  State  John  W.  Foster's  Century  of  American  Diplomacy, 
and  Tucker's  Monroe  Doctrine. 

In  connection  with  trans-Isthmian  communication,  however,  so  far 
as  Great  Britain  is  concerned,  the  Clayton-Bulwer  treaty  of  1850  is  con- 
sidered by  some  as  a  modification  of  the  Monroe  Doctrine;  but  al- 
though that  treaty  created  a  joint  protectorate  between  this  country 
and  Great  Britain  as  to  a  trans-Isthmian  canal,  under  certain  then  ex- 
pect-ed  conditions  which  up  to  this  time  have  never  materialized,  it  did 
not  weaken  the  right  of  the  United  States  to  prevent  the  extension  of 
British  dominion  in  Central  America,  as  was  evidenced  by  the  firm 
position  which  was  asserted  and  maintained  in  regard  thereto  by  Mr. 
Webster. 

Particular  reference  in  this  respect  is  made  to  Mr.  Keasby's  chapter 
"the  Central  American  Imbroglio,"  in  which  he  says  that  the  Monroe 
Doctrine  was  asserted  with  the  result  that  Great  Britain  was  obliged 
to  withdraw  from  her  protectorate  over  the  Mosquito  Coast.  See  also 
the  history  of  Central  American  Complications  with  Great  Britain  in 
Government  Document,  1856,  Central  American  Affairs  and  the  Enlist- 
ment Question. 

EELATIONS  WITH  CUBA. 

The  relations  of  the  United  States  and  Cuba  have  always  been  more 
or  less  affected  by  the  Monroe  Doctrine.  In  1852  France  and  England 
suggested  that  those  powers  and  the  United  States  should  enter  intc)  a 
joint  disavowal  of  ever  intending  to  acquire  the  Island  of  Cuba;  this 
the  United  States  refused  to  do.  On  the  contrary,  those  powers  were 
informed  that  events  might  necessitate  the  acquisition  of  Cuba  by  the 
United  States,  but  whether  that  were  so  or  not,  under  no  circumstances 
would  this  country  permit  any  other  country  to  take  possession  of  that 
island. 

On  December  1.  1852,  Secretary  of  State  Edward  Everett,  wrote  identic 
notes  to  Great  Britain  and  France,  in  which  he  expressed  the  position 
of  the  United  States  as  follows  (1  Wharton's  Digest,  §  60): 

"  The  United  States,  on  the  other  hand,  would,  by  the  proposed  con- 
vention, disable  themselves  from  making  an  acquisition  which  might 
take  place  without  any  disturbance  of  existing  foreign  relations  and  in 
the  natural  order  of  things.  The  Island  of  Cuba  lies  at  our  doors.  It 
commands  the  approach  to  the  Gulf  of  Mexico,  jrhich  washes  the  shores 
of  five  of  our  States.     It  bars  the  entrance  of  that  great  river  which 

104 


CH.  11.]  SOVEREIGNTY  AND  TERKITORIAL  ACQUISITION.  §  55 

transfer  of  Cuba  to  some  other  power,  we  gave  notice  at 
once  that  no  such  transfer  would  be  permitted.^     On  the 


and  International  Kelations,  by 
James  Morton  Callahan,  John  Hop- 
kins Press,  1899. 


§55. 

iFor  an  extended  history  of  the 
foreign  relations  of  the  United 
States  affecting  Cuba,  see:  Cuba 
drains  half  the  North  American  continent,  and  with  its  tributaries 
forms  the  largest  system  of  internal  water  communication  in  the  world. 
It  keeps  watch  at  the  doorway  of  our  intercourse  with  California  by  the 
Isthmus  route.  If  an  island  like  Cuba,  belonging  to  the  Spanish  Crown, 
guarded  the  entrance  of  the  Thames  and  the  Seine,  and  the  United 
States  should  propose  a  convention  like  this  to  France  and  England, 
those  powers  would  assuredly  feel  that  the  disability  assumed  by  our- 
selves was  far  less  serious  than  that  which  we  asked  them  to  assume. 
The  opinions  of  American  statesmen,  at  different  times  and  under  vary- 
ing circumstances,  have  differed  as  to  the  desirableness  of  the  acquisi- 
tion of  Cuba  by  the  United  States.  Territorially  and  commercially  it 
would  in  our  hands  be  an  extremely  valuable  possession.  Under  cer- 
tain contingencies  it  might  be  almost  essential  to  our  safety.  Still  for 
domestic  reasons,  on  which  in  a  communication  of  this  kind  it  might 
not  be  proper  .to  dwell,  the  President  thinks  that  the  incorporation  of 
the  island  into  the  Union  at  the  present  time,  although  effected  with 
the  consent  of  Spain,  would  be  a  hazardous  measure;  and  he  would  con- 
sider its  acquisition  by  force,  except  in  a  just  war  with  Spain,  should  an 
event  so  greatly  to  be  deprecated  take  place,  as  a  disgrace  to  the  civili- 
zation of  the  age."  (Mr.  Everett,  Sec.  of  State,  to  Mr.  Crampton, 
Dec.  1,  1852,  MSS.  Notes  Gr.  Brit.  See  Mr.  Everett  and  the  Cuban 
Question,  by  Mr.  Trescot,  9  South,  Quar.  Eev.,  new  series,  April,  1854, 
429.     For  Mr.  Everett's  views  in  full,  see  1  Wharton's  Digest,  §  72). 

Mr.  Everett,  on  December  3,  1852,  wrote  again  to  Mr.  Crampton  as 
follows: 

"To  enter  into  a  compact  with  European  powers  to  the  effect  that 
the  United  States,  as  well  as  the  other  contracting  powers,  would  dis- 
claim all  intention,  now  or  hereafter,  to  obtain  possession  of  Cuba,  would 
be  inconsistent  with  the  principles,  the  policy,  and  the  traditions  of  the 
United  States."  1  Wharton's  Digest,  §  60.  (Mr.  Everett,  Sec.  of  State, 
to  Mr.  Crampton,  Dec.  3,  1852,  MSS.  Notes,  Gr.  Brit;  see  also  1  Whar- 
ton's Digest,  §  72. ) 

See  also  the  authorities  cited  in  section  60  of  Wharton's  Digest  under 
the  head  of  Intervention  in  Cuba,  including  extract  from  President  Fil- 
more's  ihird  annual  message  in  1852. 

As  to  the  present  relations  of  Cuba  and  the  United  States  and  the 
effect  of  the  Monroe  Doctrine  thereon,  see  §§  100  et  seq.,  chap.  Ill,  post. 

MEXICAN  INTERVENTION. 

One  of  the  most  notable  instances  of  the  application  of  the  Monroe 
Doctrine  was  in  1861-i865  during  which  period  Louis  Napoleon  at- 
tempted to  establish  a  monarchy  in  Mexico  under  French  protection. 

105 


§  55  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  U. 

other  hand,  however,  when  France  and  England  asked  us 
to  unite  with  them  in  a  mutual  declaration  that  all  of  the 

England,  Spain  and  France  had  claims  against  Mexico  amounting,  pos- 
sibly, to  a  million  dollars,  but  the  French  bankers  held  bonds  which  had 
been  issued  to  the  amount  of  fifteen  millions, although,  comparatively, 
only  a  trifling  sum  had  been  advanced  upon  them. 

Mexico  refused  to  pay  the  debt,  and  in  1861  the  three  Powers  signed 
a  convention  by  which  they  agreed  to  exercise  coercive  measure  to  en- 
force the  payment  of  their  debts.  Article  2  of  the  convention  was  as 
follows: 

"Art.  II.  The  high  contracting  parties  engage  not  to  seek  for  them- 
selves, in  the  employment  of  the  coercive  measures  contemplated  by  the 
present  Convention,  any  acquisition  of  territory,  nor  any  special  ad- 
vantage, and  not  to  exercise  in  the  internal  affairs  of  Mexico  any  influ- 
ence of  a  nature  to  prejudice  the  right  of  the  Mexican  nation  to  choose 
and.  to  constitute  freely  the  form  of  its  government." 

The  War  of  the  Rebellion  was  raging  at  that  time,  but  even  in  its 
crippled  condition,  the  Government  of  the  United  States  remained  un- 
changed in  its  adherence  to  the  Monroe  Doctrine;  "  From  the  moment " 
as  stated  by  Tucker,  "  when  intervention  seemed  probable,  explanations 
were  demanded  of  France,  and  the  assurance  was  given  that  her  sole 
purpose  was  the  enforcement  of  the  claims  of  the  subjects  of  the  Em- 
peror. During  the  entire  period  of  the  French  occupation  of  Mexico, 
the  Government  of  the  United  States  recognized  only  the  Government 
of  Juarez,  and  after  the  termination  of  the  Civil  War  in  the  United  States 
the  Government  at  Washington  was  more  pronounced  than  ever  in 
warning  the  Government  of  France  of  the  consequences  likely  to  follow 
the  prolonged  stay  of  the  French  troops  in  Mexico." 

This  attitude  of  the  United  States  was  necessitated  by  the  attempt  on 
the  part  of  France  to  establish  an  empire  with  a  monaachical  form  of 
government  in  Mexico;  in  fact,  the  placing  of  Maximilian  upon  the 
throne  was  not  for  the  purpose  of  obtaining  the  payment  of  a  debt  to 
France,  but  for  the  purpose  of  establishing  in  America  an  ally  of  France. 

England  and  Spain  withdrew  from  the  attempt  to  destroy  republican 
institutions  in  Mexico,  and  thus  left  the  matter  entirely  in  the  hands  of 
France. 

The  final  result  of  the  opposition  asserted  by  the  Government  of  the 
United  States,  as  communicated  by  Secretary  Seward  to  the  French 
Government,  was  that  France  withdrew  from  Mexico;  on  the  5th  of 
April,  1866,  it  was  announced  that  the  French  troops  would  evacuate 
Mexico,  and  in  a  little  less  than  a  year  from  that  date  they  all  departed. 

While  this  matter  was  entirely  settled  through  diplomatic  correspond- 
ence, there  is  no  doubt  that  the  fact  that  General  Sheridan,  whose  repu- 
tation as  a  military  commander  was  as  well  known  and  respected  in 
France  as  it  was  in  the  United  States,  was  at  the  head  of  an  army  of 
veterans  of  the  Civil  War,  encamped  in  the  vicinity  of  Mexico;  although 
there  is  nothing  in  the  records  of  the  War  Department  or  the  State  De- 
partment to  connect  the  exact  causes  of  his  location  with  the  French 

106 


CH.  II.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  55 

uniting  powers  disclaimed  any  intention  of  ever  acquiring 
that  island,  we  promptly  declined,  declaring  that  although 

troops  in  Mexico,  that  location  might  have  proved  to  be  very  fortunate 
for  the  United  States,  had  it  become  necessary  to  use  our  military  forces 
in  order  to  enforce  our  rights  under  the  Monroe  Doctrine. 

In  speaking  of  the  results  of  the  Mexican  episode.  Sir  Edward  S. 
Creasy,  an  eminent  English  authority  on  international  law,  says  at 
page  122:  "  The  United  States  (occupied  by  their  own  Civil  War,  which 
was  then  raging)  did  not  actually  send  troops  to  oppose  the  French  in 
Mexico,  but  they  steadily  refused  to  recognize  Maximilian,  or  any 
government  except  a  republican  government  in  Mexico,  and  the  lan- 
guage of  their  statesmen  exhibited  the  fullest  development  of  the  Mon- 
roe Doctrine." 

VENEZUELA  BOUNDARY  DISPUTE  WITH  GREAT  BRITAIN. 

The  most  notable  instance  of  the  enforcement  of  the  principles  enun- 
ciated by  President  Monroe  was  in  1895  and  1896,  when  President  Cleve- 
land asserted  that  "the  Monroe  Doctrine  finds  its  recognition  in  those 
principles  of  international  law  which  are  based  upon  the  theory  that 
every  nation  shall  have  its  rights  protected  and  its  just  claims  enforced." 

This  sentence  was  contained  in  his  message  transmitted  to  Congress 
on  December  17,  1895,  after  Lord  Salisbury  had  declared  in  a  dispatch 
to  the  British  Ambassador,  and  which  had  been  left  with  the  Secretary 
of  State,  that  the  Monroe  Doctrine  did  not  embody  any  principle  of  in- 
ternational law  founded  upon  the  general  consent  of  nations.  The  exact 
words  of  Lord  Salisbury  will  be  found  in  his  dispatch  dated  November  26, 
1895,  commencing  at  p;ige  563,  part  I.  of  the  Foreign  Relations'  Report, 
1895.  In  the  course  of  his  dispatch  he  declared  that  he  would  not  be 
understood  as  expressing  any  acceptance  of  the  doctrine  on  the  part  of 
Her  Majesty's  Government;  in  fact,  he  said: 

"It  must  always  be  mentiored  with  respect,  on  account  of  the  dis- 
tinguished statesman  to  whom  it  is  due,  and  the  great  nation  who  have 
generally  adopted  it.  But  international  law  is  founded  on  the  general 
consent  of  nations  ;  and  no  statesman,  however  etninent,  and  no  nation, 
however  powerful,  are  competent  to  insert  into  the  code  of  international 
law  a  novel  principle  which  was  never  recognized  before,  and  which 
has  not  since  been  accepted  by  the  Government  of  any  other  country. 
The  United  States  have  a  right,  like  any  otlier  nation,  to  interpose  in 
any  controversy  by  which  their  own  interests  are  affected  ;  and  they 
are  the  judge  whether  those  interests  are  touclied,  and  in  what  measure 
they  should  be  sustained.  But  their  riglits  are  in  no  way  strengthened 
or  extended  by  the  fact  that  the  controversy  affects  some  teri'itory 
•which  is  called  American.  Mr.  Olney  quotes  the  case  of  the  recent 
Chilean  war,  in  wliiiOi  the  United  States  declined  to  join  with  Frniice 
and  England  in  an  effort  to  bring  hostilities  to  a  close,  on  account  of  the 
Monroe  Doctrine.  The  United  States  were  entirely  in  their  right  in  de- 
clining to  join  in  an  attempt  at  pacification  if  they  thought  fit ;  but 
Mr.  Olney's  principle  that  American  questions  are  for  American  de- 

107 


§  55  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  U. 

"vve  would  not  ])errait  any  other  power  to  acquire  or  occupy 
it,  we  would  not  bind  ourselves  not  to  do  so,  as  circumstances 

cision,  even  if  it  receive  any  countenance  from  the  language  of  Presi- 
dent Monroe  (whicli  it  does  not),  cannot  be  sustained  by  any  reasoning 
drawn  from  the  law  of  uations. 

"The  Government  of  the  United  States  is  not  entitled  to  affirm  as  a 
universal  proposition,  with  lefereuce  to  a  number  of  independent  States 
for  whose  conduct  it  assumes  no  responsibility,  that  its  interests  are 
necessarily  concerned  in  whatever  may  befall  those  States  simply  be- 
cause they  are  situated  in  the  Western  Hemisphere.  It  may  well  be 
that  the  interests  of  the  United  States  are  affected  by  something  that 
happens  to  Chili  or  to  Peru,  and  that  that  circumstance  may  give  them 
the  right  of  interference  ;  but  such  a  contingency  may  equally  happen 
in  the  case  of  China  or  Japan,  and  the  right  of  interference  is  not  more 
extensive  or  more  assured  in  the  one  case  than  in  the  other." 

Lord  Salisbury's  instructions  to  Sir  Julian  Pauncefote,  from  which 
the  above  is  quoted,  were  practically  in  reply  to  the  instructions  of 
Mr.  Olney,  then  Secretary  of  State,  to  Mr.  Bayard,  our  Minister  in 
London,  July  20,  181)5  (Foreign  Relations,  1895,  Part  1,  page  545  ;  pp. 
558,  5G0  j,  in  which  the  following  occurred  : 

"The  people  of  the  United  States  have  learned  in  the  school  of  ex- 
perience to  what  extent  the  relations  of  states  to  each  other  depend  not 
upon  sentiment  nor  principle,  but  upon  selfish  interest.  They  will  not 
soon  forget  that,  in  their  hour  of  distress,  all  their  anxieties  and  bur- 
dens were  aggravated  by  the  possibility  of  demonstrations  against  their 
national  life  on  tlie  part  of  powers  with  whom  they  had  long  main- 
tained the  most  harmonious  relations.  They  have  yet  in  mind  that 
France  seized  upon  the  apparent  opportunity  of  our  civil  war  to  set  up 
a  monarchy  in  the  adjoining  state  of  Mexico.  They  realize  that  had 
France  and  Great  Britain  held  important  South  American  possessions 
to  work  from  and  to  benefit,  the  temptation  to  destroy  the  predomi- 
nance of  the  Great  Republic  in  this  hemisphere  by  furthering  its  dismem- 
berment might  have  been  irresistible.  From  that  grave  peril  they  have 
been  saved  in  tlie  past  and  may  be  saved  again  in  the  future  throuRh 
the  operation  of  the  sure  but  silent  force  of  the  doctrine  proclaimed  by 
President  Monroe.  To  abandon  it,  on  the  other  hand,  disregarding  both 
the  logic  of  the  situation  and  the  facts  of  our  past  experience,  would  be 
to  renounce  a  policy  which  has  proved  both  an  easy  defense  against 
foreign  aggression  and  a  prolific  source  of  internal  progress  and  pros- 
perity. 

"There  is,  then,  a  doctrine  of  American  public  law,  well  founded  in 
principle  and  abundantly  sanctioned  by  precedent,  which  entitles  and 
requires  the  United  States  to  treat  as  an  injury  to  itself  the  forcible  as- 
sumption by  an  European  power  of  political  control  over  an  American 
state.  The  application  of  the  doctrine  to  the  boundary  dispute  between 
Great  Britain  and  Venezuela  remains  to  be  made  and  presents  no  real 
difficult}'.  Though  the  dispute  relates  to  a  boundary  line,  yet,  as  it  is 
between  states,  it  necessarily  imports  political  control  to  be  lost  by  one 

108 


CH.  II.]  SOVEEEIGNTY  AND  TERRITORIAL,  ACQUISITION.  §  55 

might  render  it  advisable,  or  even  necessary,  for  us  to  take 
such  action.^ 


acquire  Cuba,  December  1,  1852, 
and  referred  to  in  note  1  to  §  52, 
page  104-5. 


2 See  dispatch  of  Secretary  of 
State  Everett  in  regard  to  pro- 
posed mutual  disavowal  of  Eng- 
land, France  and  United  States  to 
party  and  gained  by  the  other.  The  political  control  at  stake,  too,  is 
of  no  mean  importance,  but  concerns  a  domain  of  great  extent — the 
British  claim,  it  will  be  remembered,  apparently  expanded  in  two  years 
some  33,000  square  miles — and,  if  it  also  directly  involve  the  command 
of  the  mouth  of  the  Orinoco,  is  of  immense  consequence  in  connection 
with  the  whole  river  navigation  of  the  interior  of  South  America.  It 
has  been  intimated,  indeed,  that  in  respect  of  these  South  American 
possessions  Great  Britain  is  herself  an  American  state  like  any  other, 
so  that  a  controversy  between  her  and  Venezuela  is  to  be  settled  between 
themselves  as  if  it  were  between  Venezuela  and  Brazil  or  between 
Venezuela  and  Colombia,  and  does  not  call  for  or  justify  United  States 
intervention.  If  this  view  be  tenable  at  all,  the  logical  sequence  is 
plain. 

"  Great  Britain  as  a  South  American  State  is  to  be  entirely  differen- 
tiated from  Great  Britain  generally,  and  if  the  boundary  cannot  be 
settled  otherwise  than  by  force,  British  Guiana,  with  her  own  independ- 
ent resources  and  not  those  of  the  British  Empire,  should  be  left  to 
settle  the  matter  with  Venezuela — an  arrangement  which  very  possibly 
Venezuela  might  not  object  to.  But  the  proposition  that  an  European 
power  with  an  American  dependency  is,  for  the  purpose  of  the  M(mroe 
Doctrine,  to  be  classed  not  as  an  European  but  as  an  American  state,  will 
not  admit  of  sei'ious  discussion.  If  it  were  to  be  adopted,  the  Monroe 
Doctrine  would  be  too  valueless  to  be  worth  asserting.  Not  only  would 
every  European  power  now  having  a  South  American  colony  be  enabled 
to  extend  its  possessions  on  this  continent  indefinitely,  but  any  other 
European  power  might  also  do  the  same  by  first  taking  pains  to  procure 
a  fraction  of  South  American  soil  by  voluntary  cession, 

"  The  declaration  of  the  Monroe  message — that  existing  colonies  or 
dependencies  of  an  European  power  would  not  be  interfered  with  by 
the  United  States — means  colonies  or  dependencies  then  existing,  with 
their  limits  as  then  existing.  So  it  has  been  invariably  construed, 
and  so  it  must  continue  to  be  construed  unless  it  is  to  be  deprived  of 
all  vital  force.  Great  Britain  cannot  be  deemed  a  South  American  state 
within  the  purview  of  the  Monroe  Doctrine,  nor,  if  she  is  appropriating 
Venezuelan  territory,  is  it  material  that  she  does  so  by  advancing  the 
frontier  of  an  old  colony  instead  of  by  the  planting  of  a  new  colony. 
The  difference  is  matter  of  form  and  not  of  substance,  and  tlie  doctrine, 
if  pertinent  in  the  one  case,  must  be  in  the  other  also.  It  is  not  admit- 
ted, however,  and  therefore  cannot  be  assumed,  that  Great  Britain  is 
in  fact  usurping  dominion  over  Venezuelan  territory.  While  Venezuela 
charges  such  usurpation,  Great  Britain  denies  it,  and  the  United  States, 
until  the  merits  are  authoritatively   ascertained,  can  take  sides  with 

109 


§  56  TREATY-ISLVKIXG  TOWER  OF  THE  U.  S.  [CH.  II. 

§  56.  Louis  Napoleon,  Mexico,  and  the  Monroe  Doctrine. 

— In  1862,  the  Emperor  Louis  iiapoleon  attempted  to  take 

neither.  But  while  this  is  so — while  the  United  States  may  not,  under 
existing  circumstances  at  least,  take  upon  itself  to  say  which  of  the  two 
parties  is  right  and  which  wroug — it  is  certainly  within  its  right  to  de- 
maud  that  the  truth  shall  be  ascertained.  Being  entitled  to  resent  and 
resist  any  sequestration  of  Venezuelan  soil  by  Gi'eat  Britain,  it  is  neces- 
sarily entitled  to  know  whether  such  sequestration  has  occurred  or  is 
now  going  on.  Otherwise,  if  the  United  States  is  without  the  right  to 
know  and  have  it  determined  whether  there  is  or  is  not  British  aggres- 
sion upon  Venezuelan  territory,  its  right  to  protest  against  or  repel 
such  aggression  may  be  dismissed  from  consideration." 

The  result  of  the  Venezuela  controversy  was  an  adjustment  between 
Venezuela  and  Great  Britain  referring  the  boundary  dispute  to  an  arbi- 
tration tribunal,  which  definitely  defined  the  boundary  line,  giving  a 
part  of  the  disputed  territory  to  Venezuela  and  a  part  to  Great  Britain; 
in  a  large  measure  the  claims  advanced  by  Venezuela  and  supported  by 
the  United  States  were  justified,  for,  although,  a  larger  amount  of  ter- 
ritory as  to  area  was  awarded  to  Great  Britain,  both  sides  of  the  mouth 
of  the  Orinoco  River  were  included  in  the  territory  awarded  to  Vene- 
zuela, thus  establishing  one  of  the  principal  points  contended  for  by 
Venezuela. 

THE  MONROE  DOCTEINE  AND  RECENT  ACQUISITIONS. 

During  the  last  three  years  the  question  has  been  raised,  principally 
by  those  opposed  to  the  acquisition  of  additional  territory,  that  it  is 
impossible  for  the  United  States  to  acquire  territory  in  the  Eastern 
Hemisphere,  and  also  to  maintain  its  traditional  policy  as  expressed  in 
the  Monroe  Doctrine  in  regard  to  affairs  of  the  Western  Hemisphere. 

The  author  considers  that  the  acquisition  of  the  Pliilippines  and  the 
Monroe  Doctrine  have  absolutely  no  bearing  upon  each  other.  The 
message  of  President  Monroe  in  which  his  doctrine  was  enunciated,  de- 
clared that  it  was  against  the  policy  of  the  United  States  to  interfere 
with  the  disputes  of  European  powers  in  regard  to  European  matters. 
At  that  time  the  European  powers  were  not  interested  in  Asiatic  matters. 
Since  that  time,  while  the  relations  of  the  United  States  in  regard  to 
European  matters,  and  the  policy  of  non-intervention  therewith  may 
not  have  changed,  and  while  it  might  be  impossible  to  change  that 
policy,  and  to  intervene  in  European  affairs,  without  altogether  aban- 
doning, or  to  a  great  extent  jeopardizing,  our  right  to  maintain  the 
Monroe  Doctrine,  our  I'ehttions  with  Asiatic  countries  are  so  entirely 
different  that  the  Monroe  Doctrine  has  absolutely  no  application  thereto. 

The  countries  on  the  eastern  side  of  the  Pacific  Ocean  are  nearer 
neighbors  to  America  than  they  are  to  Europe,  not  only  as  to  distance 
but  also  as  to  commerce.  In  a  recent  publication  the  Pacific  Ocean  has 
been  described  as  a  great  American  lake.  (See  Josiah  Strong's  Expan- 
sion, iSJ".  Y.,  1900.)  The  United  States  have  a  perfect  right  to  protect 
their  interests  in  the  Eastern  Hemisphere,  to  establish  footholds  therein, 

110 


CH.  n.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  56 

advantage  of  the  then  weak  and  disturbed  condition  of  Mex- 
ico to  establish  an  Empire  in  America  under  French  auspices 

or  to  acquire  territory  in  payment  of  indemnity,  otherwise  uncollectible, 
without  in  any  way  either  renouncing  the  Monroe  Doctrine  or  inter- 
jecting itself  into  the  affairs  of  Europe;  the  mere  fact  that  European 
nations  have  acquired  or  attempted  to  acquire  Asiatic  territory,  or  to  ex- 
ercise control  over  Asiatic  governments,  does  not  necessarily  transform 
Asiatic  affairs  into  European  affairs.  The  enunciation  of  the  M(mroe 
Doctrine  never  disclaimed  the  right  which  the  United  States  always  has 
had,  and  always  will  have,  of  exercising  its  sovereign  rights  wherever 
and  whenever  other  sovereign  powers  can  exercise  similar  rights  of 
sovereignty. 

SOME   OPINIONS   OF   PUBLICISTS. 

It  is  impossible  to  collate  all  the  authorities  upon  the  Monroe  Doc- 
trine. A  few  only  will  be  referred  to.  John  W.  Foster,  as  expressed 
in  his  Century  of  American  Diplomacy,  has  already  been  referred  to; 
Professor  Theodore  Dvvight  Woolsey  and  his  son.  Professor  Theodore 
Salisbury  Woolsey,  have  expressed  some  doubt  as  to  the  principles  of 
the  Monroe  Doctrine  so  far  as  the  right  to  intervene  merely  because  the 
territory  is  in  the  western  hemisphere,  although  they  sustain  that  right 
whenever  such  intervention  is  prejudicial  to  our  material  interests. 
Their  views  are  expressed  in  section  48,  Introduction  to  the  Study  of 
International  Law  by  Theodore  Dwight  Woolsey  (6th  edition,  revised 
by  Theodore  Salisbury  Woolsey,  X.  Y.,  1891),  and  in  the  chapter  devoted 
to  that  subject  in  Theodore  S.  Woolsey's  America's  Foreign  Policy 
(N.  Y.,  1898). 

Doctor  Francis  Wharton  devotes  sections  56a  to  61a,  pages  268  to 
416  of  volunae  I.  to  a  consideration  of  the  Monroe  Doctrine  under  the 
title,  "III.  Intervention  of  European  sovereigns  in  the  affairs  of  this 
continent  disapproved.     Monroe  Doctrine." 

He  refers  to  the  original  enunciation  of  the  doctrine  in  sections  56a 
and  57;  in  the  following  sections  he  refers  to  subsequent  applications 
of  the  doctrine  in  regard  to  Yucatan,  Mexico,  Peru,  Cuba,  Hayti,  San 
Domingo  and  the  Danish  West  Indies. 

There  are  numerous  extracts  from  opinions  of  the  Presidents,  dis- 
patches and  notes  of  Secretaries  of  State,  and  of  the  replies  from  foreign 
offices  of  their  governments  in  regard  to  the  Monroe  Doctrine  and  its 
application. 

In  regard  to  the  Clayton-Bulwer  treaty,  he  says  on  page  288:  "The 
Clayton-Bulwer  treaty  is  the  only  exception  to  the  rule  that  the  Gov- 
ernment of  the  United  States  will  decline  to  enter  into  combinations  or 
alliances  with  European  powers  for  the  settlement  of  questions  con- 
nected with  the  United  States."  See  also  bibliography  of  Monroe  Doc- 
trine contained  in  Gilman's  Life  of  James  Monroe,  American  Statesmen 
Series. 

On  the  other  hand,  some  of  the  eminent  French  authorities  on  inter- 
national law   have  declared  that  the  Monroe  Doctrine  cannot  be  consid- 

111 


§  56  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  II. 

and  protection;  in  1865,  however,  after  our  civil  war  was 
over,  and  we  had  time  to  devote,  and  military  forces  with 

ered  in  any  light  as  a  principle  of  international  law,  but  that  it  is  the 
mere  expression  of  opinion  of  an  American  statesman.  In  this  respect 
Alphonse  Rivier  says  (Droit  des  Gens,  Paris,  189ij,  pp.  40-1-5,  Vol.  1): 

§  88.  La  Doctrine  de  Monkoe. — "La  politique  d'intervention  de  la 
Sainte-Alliance  a  provoque  une  declaration  importante  du  cinquieme 
president  des  £tats-Uuis,  James  Monroe,  dans  son  message  presidentiel 
due  2  SejJtembre,  1823. 

"  D'apres  cette  declaration,  les  £tats-Unis  d'Amevique  ne  s'ingereront 
pas  dans  les  affaires  des  nations  europeennes  qui  ont  des  colonies  en  Amer- 
ique;  mais  ils  ne  tolereront  pas  non  plus  que  les  Etats  nouveaux,  recon- 
nus  par  eux  comme  independants,  soient  en  butte  aux  attaques  d'fitats 
europeennes,  et  ils  respousseront  toute  immixtion  de  I'Europe  sur  le 
continent  americain.  C'est  la  ce  qu'on  designe  communement  sous  le 
nom  de  doctrine  de  Monroe.     .     .     . 

"  Le  message  coutient  une  autre  declaration,  motivee  par  les  revendi- 
cations  ou  pretentions  de  la  Fvussie  dans  le  Nord  de  T  Amerique.  'Les  con- 
tinents americains,  d'apres  I'etat  de  liberte  et  d'independance  qu'ils  se 
sont  acquis  et  dans  lequel  ils  se  sont  maintenus,  ne  peuvent  etre  consi- 
derees  a  Tavenir  comme  susceptibles  d'etre  colonises  par  aucune  puis- 
sance europeenue.'  Ceci  veut  dire  que  le  sol  de  I'Amerique  n'est  plus 
sans  maitre,  qu'une  occupation  nouvelle  par  un  fitat  d'Europe  n'y  est 
done  pas  concevable. 

"  La  doctrine  de  Monroe  est  une  maxime  ou  regie  de  conduite,  qui 
n'avait,  dans  I'origine,  d'autre  valeur  que  celle  d'une  opinion  ou  d'une 
resolution  personelle  de  son  auteur  responsable,  enoncee  en  quelque 
sorte  ex  cathedra.  Les  successeurs  de  James  IMonroe  ysoutrestes  fide- 
les.  John  Quincy  Adams,  president  a  son  tour.  Fa  proclamee  derechef 
a  propos  du  congres  de  Panama  (1820),  et  les  republiques  de  I'Ameri- 
que espagnole  ont  declare  I'adopter  au  congres  de  Lima  (1865).  Maiselle 
n'a  jamais  fait  I'objet  d'une  convention,  a  laquelle  des  Etats  non  amer- 
icains auraient  consenti.  II  va  sans  dire  qu'elle  ne  saurait  avoir  aucune 
sorte  de  force  obligatoire  pour  I'Europe.  Son  principe  ne  fait  point 
partie  des  principes  du  droit  des  gens.  La  pretention  emise  plus  d'une 
fois  par  les  £tats-Unis  de  I'imposer  plus  oumoins  aux  Etats  europeens, 
est  denuee  de  tout  fondement  juridique. 

"  D'autre  part, cette  maxime  n'implique  pas,  aiusi  qu'on  Ta  cru  parfois, 
une  intention  des  £tats-Unis  de  se  desinteresser  de  la  politique  geuerale 
de  la  Societe  des  nations,  et  il  n'est  point  inutile  de  constater  que  tout 
en  ecartant  jalousement  toute  immixtion  europeenne  sur  les  continents 
americains,  ils  s'arrogent  eux-memes  le  droit  d'y  intervenir  partout  et 
a  tout  propos,  si  bien  qu'aujourd'hui  ce  qu'ils  appellent  la  doctrine  de 
Monroe  est  en  realite  F affirmation  d'une  pretention  permanente  des 
£tats-Unis  d' intervenir  dans  les  affaires  de  tons  les  autres  Etats  d' 
Amerique." 

Calvo  devotes  sections  1-47-167,  pp.  284-300  of  the  first  volume  of  his 
International  Law  (fifth  edition,  Paris,  1S96)  to  a  history  of  the  Mon- 

112 


CH.  II.]  SOVEREIGNTY  AND  TEEKITOKIAL  ACQUISITION.  §  57 

wLiich  to  attend,  to  such  matters.  Secretary  Seward  explained 
the  Monroe  Doctrine  to  the  Emperor,  and  French  support 
was  withdrawn  from  the  ill-fated  Maximilian,  thus  endins: 
the  last  attempt  on  the  part  of  any  European  power  to  make 
a  new  foothold  in  the  western  hemisphere.^ 

§  57.  Germany  and  Samoa. — Not  under  the  Monroe  Doc- 
trine, but  simply  on  general  principles  we  cried  halt  to  Ger- 
iiumy  in  her  efforts  to  acquire  Samoa,  and  forced  her  to 
make  an  equitable  arrangement  with  this  country  and  Great 
Britain  in  regard  to  the  control  of  that  far-off  Archipelago 

roe  Doctrine  as  announced,  its  subsequent  application  and  the  opinions 
of  publicists  iu  regard  thereto.  At  the  foot  of  pp.  248,  285  and  300  will 
be  found  three  notes  which  refer  to  numerous  authorities  which  he  has 
consulted  in  preparing  his  matter.  The  authorities  as  they  are  collated 
in  those  notes  are  as  follows:  At  the  foot  of  page  284:  "  Wheaton, 
Elem.,  pte.  2,  ch.  1,  Sec.  11;  Wheaton,  Hist.,  t.  1,  pp.  110-114;  t.  II,  pp. 
219-239,  252-260;  Vattel,  Le  droit,  livre  II,  ch.  iv,  sec,  54,  56,  57;  liv.  Ill, 
ch.  iii.  Sec.  50;  Martens,  Precis,  Sec.  74;  Phillimore,  Com.,  vol.  I,  pte.  4, 
pp.  433-483;  Kent,  Com.,  vol.  I,  pp.  22,  23;  Kluber,  Droit,  Sec.  51;  HefE- 
tor.  Sees.  44-46;  Bluntschli,  Le  droit.  Sec.  474;  Manning,  pp.  97,  98; 
Wildmann,  vol.  I,  p.  47;  Bello,  pte.  I,  cap.  i,  Sec.  7;  Riquelme,  lib.  I, 
tit.  2,  cap.  xxiv;  Halleck,  ch.  iv,  Sec.  4;  ch.  xxiv.  Sec.  12;  Huber,  De 
jure,  lib.  Ill,  cap.  vii.  Sec.  4;  Pando,  p.  74;  Dolloz,  Repertoire,  V.  Droit 
des  gens,  ns.  86  et  seq. ;  Verge,  Martens,  t.  I,  pp.  202  et  seq. ;  Berriat 
Saint-Prix,  Theorie,  pp.  164  et  seq.;  PinJieiro  Ferreira,  Vattel,  iv.  II, 
ch.  iv.  Sec.  50;  Guizot,  Memories,  t.  IV,  pp.  4,  5;  Pradier-Fodere,  Vattel, 
t.  II,  pp.  27  et  seq.,  308;  Ott,  Kluber,  Sec.  51,  note  c;  Hautefeuille,  Le 
principe  de  non-intervention;  Funck  Brentano  et  Sorel,  Precis,  ch.  xi, 
Hall;  int.  law,  p.  242." 

At  the  foot  of  p.  .300: 

"  Dana,  Elem.,  by  Wheaton,  note  36;  British  and  foreign  State  papers, 
V.  I,  pp.  662  et  seq. ;  v.  VII,  pp.  585  et  seq. ;  v.  VIII,  pp.  524  et  seq. ;  v.  XI, 
pp.  4  et  seq. ;  v.  XII,  pp.  535  et  seq. ;  v.  XIII,  pp.  390  et  seq. ;  483  et  seq. ; 
V.  XXXIII,  pp.  198  et  seq.  ;  United  States  laws,  v.  X,  p.  995;  Calhoun, 
Works,  vol.  IV,  p.  454;  Mackintosh,  Works,  vol.  HI,  pp.  433-478;  Web- 
ster, Works,  vol.  Ill,  p.  178;  Torres  Caicedo,  Union,  cap.  xii,  p.  63;  Sarmi- 
ento,  A  discourse,  p.  14;  Sarmiento,  Vida  de  Lincoln,  int.  p.  xxiii;  Las- 
tari.  La  America,  cap.  xiv,  p.  130;  Valiente,  Beformas,  p.  211;  Gervinns, 
t.  X,  pp.  125  et  seq. ;  Ch.  Calvo,  America  latina,  periodo  1°,  t.  Ill,  p.  338; 
periodo  3°;  Alaman,  t.  V,  pp.  815-819;  Lawrence,  Elem.,  by  Wheaton, 
note  46;  Buchanan,  p.  276;  Creasy,  First  platform.  Sees.  303  et  seq.; 
Woolsey,  Introd.  to  the  study  of  int.  law.  Sec.  74." 


§56. 

1  See  reference  to  Congressional 
documents  and  history  of  French 

8  113 


Intervention  in  Mexico  in  note  1  to 
§  52,  page 


§  58  TREATY-MAKING  POWER  OP  THE  U.  S.  [cH.  II. 

in  the  Pacific  Ocean,  which  is  of  such  strategic  value  to  our 
merchant,  and  our  naval,  marine.^ 

Certainly,  so  far  as  international  law  is  concerned,  there 
is  no  doubt  that  it  has  been  determined,  by  the  consent  of 
every  nation  of  the  world,  that  the  right  of  acquisition  of 
additional  territory  exists  in  every  sovereign  power,  and 
that  it  exists  paramountly  in  the  United  States. 

§  58.  Monroe  Doctrine  and  the  Peace  Conference  at  The 
Hague ;  1899. — As  appears  in  the  foot  note  to  §  52,  the 
Monroe  Doctrine  is  an  American  enunciation,  to  which  some 
other  nations  claim  that  they  have  never  acquiesced ;  the  in- 
stances already  cited,  however,  demonstrate  that  although 
almost  every  government  has  had  the  opportunity  of  pro- 
testing against  its  enforcement,  they  have  all  practically  ad- 
mitted our  right  to  assert  it. 

In  1899,  at  the  Peace  Conference  at  The  Hague,  a  treaty 
was  prepared  in  which  the  United  States  joined,  but  in  doing 
so  made  the  following  reservation : 

"  Nothing  contained  in  this  Convention  shall  be  so  con- 
strued as  to  require  the  United  States  of  America  to  depart 
from  its  traditional  policy  of  not  entering  upon,  interfering 
with,  or  entangling  itself  in  the  political  questions  or  inter- 
nal administration  of  any  foreign  state,  nor  shall  anything 
contained  in  the  said  Convention  be  so  construed  as  to  re- 
quire the  relinquishment  by  the  United  States  of  America, 
of  its  traditional  attitude  toward  purely  American  questions." 

The  effect  of  this  is  that  a  treaty  has  been  accepted  by 
all  the  other  signatory  powers  containing  a  declaration  of  the 
Monroe  Doctrine  as  it  has  been  adopted  by,  and  made  a  part 
of,  the  traditional  policy  of  the  United  States,  and  that  all 
those  Signatory  Powers  have  recognized  without  j^rotest  the 
existence  of  the  policy,  and  the  intention  of  the  United  States 
to  adhere  to  it. 


§57. 

1  Convention  between  the  United 
States,  Germany  and  Great  Britain 
to  adjust  amicably  the  questions 
between  the  three  governments  in 
respect  to  the  Samoau  Group  of 
Islands.  Signed  December  2, 1899;  j  Treaties  in  Force  1899,  p.  551. 
ratified  bv  Senate  January  16,  1900;  | 
114 


ratifications  exchanged  and  treaty 
proclaimed  P'ebruary  16,  1900.  31 
U.  S.  Statutes  at  Large,  56th  Con- 
gress, 1st  Sess.  1899-1900,  appx. 
Treaties,  p.  70.  See  other  Treaties 
in  regard  to  Samoan  Islands:  U.  S. 


CH.  n.]  SOVEREIGNTY  AND  TERHITOIllxiL  ACQUISITION.  §  58 

The  history  of  this  reservation,  and  some  observations  as 
to  its  effect,  will  be  found  in  the  Fifth  Chapter  of  "  The  Peace 
Conference  at  The  Hague,"  in  which  Mr.  Frederick  W.  Holls, 
the  able  and  efficient  Secretary  of  the  American  Commis- 
sion, has  perjnanently  recorded  the  transactions  of  the  Con- 
ference ;  the  extract  from  that  interesting  volume  quoted  in. 
the  note  to  this  section  shows  w^hat  an  important  bearing 
the  appending  of  that  resei'vation  to  The  Hague  Treaty  will 
always  have  upon  our  international  relations.^ 


§58. 

^  "  Keservation  by  the  Araerican 
Kepreseutative;  Text  of  the  Amer- 
ican Declaration;  The  Monroe  Doc- 
trine; Tlie  Declaration  accepted; 
its  importance.  According  to  this 
Article  every  Signatory  Power  rec- 
ognizes a  new  international  obliga- 
tion, as  a  duty  toward  itself  and 
every  other  Signatory  Power.  Next 
to  the  establishment  of  the  Perma- 
nent Court  of  Arbitration  this  Arti- 
cle undoubtedly  marks  the  highest 
achievement  of  the  Conference,  for 
no  doubt  the  establishment  of  the 
court  would  have  been  incomplete, 
if  not  nugatory,  without  this  sol- 
emn declaration,  which  is  undoubt- 
edly '  the  crown  of  the  whole  work,' 
as  it  was  declared  to  bo  by  one  of 
the  American  representatives  in 
the  Committee  on  Arbitration.  At 
the  same  time  there  was  just  one 
Power  whose  vital  interests  might 
be  directly  and  unfavorably  af- 
fected by  this  Article,  if  adopted 
without  qualification,  and  that 
Power  was  the  United  States  of 
America.  The  declaration,  for 
which  Mr.  Holls  made  a  reserva- 
tion in  the  Coiiiite  cVExamen,  and 
which  was  afterward  carefully 
formulated,  is  forthe  United  States 
of  America  by  no  means  the  least 
important  part  of  the  entire  con- 
vention, and  reads  as  follows: 
•     "'Nothing    contained     in     this 


Convention  shall  be  so  construed 
as  to  require  the  United  States  of 
America  to  depart  from  its  tradi- 
tional policy  of  not  entering  upon, 
interfering  with,  or  entangling  it- 
self in  the  political  questions  or 
internal  administration  of  any  for- 
eign state,  nor  shall  anything  coq- 
tained  in  the  said  Convention  be  so 
construed  as  to  require  the  relin- 
quishment, by  the  United  States 
of  America,  of  its  ti'aditional  atti- 
tude toward  purely  American  ques- 
tions.' 

"The  adoption  of  the  treaty  with- 
out any  qualification  of  Article  27, 
would  undoubtedly  have  meant,  on 
the  part  of  the  United  States,  a 
complete  abandonment  of  its  time- 
honored  policy  known  originally  as 
the  Monroe  Doctrine.  This  is  not 
the  place  to  discuss  the  merits  of 
that  policy,  or  the  truth  and  wis- 
dom of  that  doctrine.  It  is,  how- 
ever, a  fact  that  the  United  States 
of  America  is  determined  more 
firmly  than  ever  before  in  its  his- 
tory, to  maintain  this  policy  and 
the  Monroe  Doctrine,  in  its  later 
approved  and  extended  form,  care- 
fully and  energetically.  Not  even 
in  the  supposed  interest  of  univer- 
sal peace  would  the  American  peo- 
ple liave  sanctioned  for  one  moment 
an  abandonment  or  the  slightest 
infi-action  of  a  policy  which  ap- 
peals to  them  as  being  founded, 

115 


§59 


TREATY-MAKING  TOWER  OF  THE  U.  S.  [CH.  II. 


^  50.  Opposition  to  territorial  expaiisiou  from  within, 

and  uot  from  without. — The  only  voices  which  have  been 
raised  in  opposition  to  the  right  of  the  United  States  to  ac- 
quire and  to  govern  territor}^  have  come  from  within  our 
own  boundaries  and  uot  from  without. 

There  has  always  been  a  faction  which  has  opposed  the 
extension  of  the  boundaries  of  the  United  States.  The  Su- 
preme Court  has,  however,  decided  that  the  United  States 
may  constitutional!}'  acquire  territory  by  conquest,  by  treaty, 
b}'  annexation  and  by  discovery  and  the  cases  referred  to  in 


not  only  upon  legitimate  national 
desires  and  requirements  but  upon 
the  highest  interests  of  peace  and 
progress  throughout  the  world. 
To  recognize  the  American  Conti- 
nents as  proper  objects  of  any  kind 
of  European  expansion,  or  iuter- 
ference  on  the  part  of  one  or  more 
Powers,  would  not  promote  or  in- 
crease the  peace,  prosperity,  or 
happiness  of  a  siagle  human  being; 
and  assuming,  in  ever  so  small  a 
degree  the  responsibility  for  the 
status  of  so  large  a  part  of  the 
earth's  surface,  it  is  only  fair  that 
the  great  peace  power  of  the  West 
should  not  be  required  to  interfere 
against  its  will  in  any  other  quarrel. 
Nor  is  any  meritorious  interest  in 
the  world  unfavorably  affected  by 
this  attitude  of  the  United  States — 
an  attitude  assumed  and  main- 
tained, not  as  a  challenge,  not 
boastfully  toward  Europe,  nor 
patronizingly  toward  its  sister 
States  on  the  American  Continent, 
but  simply  in  pursuance  of  a  wise 
and  far-seeing  recognition  of  ob- 
vious facts  and  their  logical  bear- 
ings. 

"The  declaration  was  presented 
in  the  full  session  of  the  Conference 
on  July  2.5,  read  by  the  Secretary  of 
the  Conference,  and  unanimously 
directed  to  be  spread  upon  the 
minutes,  and  added  to  the  Conven- 

116 


tion  by  a  reference  opposite  the 
signatures  of  the  American  pleni- 
potentiaries. 

"  The  importance  of  this  proceed- 
ing, so  far  as  the  United  States  of 
America  is  concerned,  will  readily 
be  seen.  Never  before  that  day  had 
the  Monroe  Doctrine  been  officially 
communicated  to  the  representa- 
tives of  all  the  great  Powers,  and 
never  before  was  it  received  with 
all  the  consent  implied  by  a  cordial 
acquiescence,  and  the  immediate 
and  unanimous  adoption  of  the 
treaty  upon  that  condition.  An 
express  acceptance  or  recognition 
was,  of  course,  impossible,  but 
there  can  be  no  doubt  that  the 
declaration,  as  presented,  consti- 
tutes a  binding  notice  upon  every 
Power  represented  at  the  Confer- 
ence, forever  estopping  each  one 
of  them  from  thereafter  quoting 
the  treaty  to  the  United  States 
Government  in  a  sense  contrary  to 
the  declaration  itself.  The  great- 
est advantage  of  the  latter,  how- 
ever, is  the  fact  that  it  leaves  to 
the  United  States  absolute  and 
perfect  freedom  of  action,  and  this, 
in  view  of  the  recent  extension  of 
American  power,  especially  in  the 
far  East,  is  of  incalculable  impor- 
tance." The  Peace  Conference  at 
The  Hague,  Holls,  The  MacMillan 
Co.,  1900,  chap.  V.  pp.  269,  272. 


PH.  TT.^  SOVEREIGNTY  AND  TERRITOKIAL  ACQUISITION.  §  61 


the  appendix^  are  so  conclusive  that  they  place  the  mat- 
ter beyond  all  controversy,  so  far  as  the  legal  elements  are 
concerned ;  in  fact,  it  must  be  conceded  at  the  present  time  that 
questions  relating  to  annexation  of  territory  and  extension 
of  the  boundaries  of  the  United  States  belong  exclusively  to 
the  political  departments  of  the  government,  and  the  judicial 
department  has  no  control  whatsoever  thereover.^ 

^  60.  Right  to  acquire  territory  based  on  nationality  and 
sovereignty. — The  right  of  the  United  States  to  acquire  ter- 
ritory, and  to  govern  it,  is  based  upon  the  sovereign  and 
national  power  which  the  government  possesses  and  which 
has  been  sustained  in  all  the  cases  cited  in  the  notes  under 
preceding  sections  ;  in  fact,  if  it  were  not  for  the  complete  na- 
tionality and  sovereignty  of  the  United  States  it  would  have 
been  impossible  for  its  Grovernment  to  have  made  the  treaties 
under  w4iich  it  acquired  from  other  nations  those  great  pos- 
sessions by  which  our  territory  has  more  than  quadrupled 
since  the  power  was  asserted  in  the  Declaration  of  Independ- 
ence that  "as  free  and  independent  States  they  (the  United 
States)  have  full  power  to  levy  war,  conclude  peace,  con- 
tract alliances,  establish  commerce,  and  do  other  rights  and 
things  which  independent  states  may  of  right  do.'^  ^ 

§61.  Power  to  govern  acquired  territory;  the  Insular 
Cases;  1901. ^Article  lY,  section  3,  clause  2  of  the  Consti- 
tution declares  that  Congress  shall  have  the  power  to  dispose 
of,  and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States.^ 

Under  this  section  it  has  been  held  that  the  Central  Govern- 
ment has  power  to  regulate  all  territory  which  the  United 
States  acquires,  and  that  in  doing  so  it  has  absolute  and  ple- 
nary powers,  and  is  not  limited  in  its  legislation  in  the  same 


§59. 

1  See  classified  cases,  p.  535,  post. 

2  As  to  matters  within  domain  of 
judicial  department  or  legislative 
department  and  rules  of  non-inter- 
ference by  one  with  the  other,  see 
§  460,  chapter  XVI,  Vol.  II,  post. 

§60. 

1  The  right  of  the  United  States 
to  acquire  territory  was  one  of  the 
questions  involved  in  the  Insular 


Cases,  which  will  be  discussed  in 
the  succeeding  sections.  The  cases 
bearing  on  the  subject  are  collected 
in  the  Insui.ak  Cases  Appendix 
at  the  end  of  this  volume. 

§61. 

1  "The  Congress  shall  have  Power 
to  dispose  of  and  make  all  needful 
Rules  and  Regulations  respecting 
the  Territory  or  other  Property  be- 

117 


^  Gla 


TREATY-MAKING  POWEU  OF  THE  IT.  S. 


[CH.  n. 


manner  as  it  is  limited  in  its  legislation  in  regard  to  matters 
affecting  the  States,  or  territory  wholly  under  State  jurisdic- 
tion. In  a  case  decided  in  1894  the  Supreme  Court  held 
that,  "  by  the  Constitution,  as  is  now  well  settled,  the  Uni- 
ted States,  having  rightfully  acquired  the  Territories  and  be- 
ing the  onh^  government  which  can  impose  laws  upon  them, 
have  the  entire  dominion  and  sovereignty,  national  and  mu- 
nicipal, Federal  and  State,  over  all  the  Territories  so  long  as 
they  remain  in  a  territorial  condition."^ 

The  controversy  as  to  whether  the  Constitution  ex  proprio 
vigore  follows  the  flag,  reached  the  Supreme  Court  in  a  con- 
crete form  in  the  Insular  Cases  which  have  already  been  re- 
ferred to  as  pending  before  that  Court  and  in  which  many 
questions  were  discussed,  some  of  which  have  been  settled, 
in  regard  to  the  extent  of  the  limitations  upon  Congressional 
action  in  legislating  for  the  territories,  especially  those  re- 
cently acquired  from  Spain  under  the  Treaty  of  Paris. 

§  61a.  The  Insular  Cases;  status  of  New  Possessions. 
— These  cases,  so-called  because  the}"  involved  the  status  of 
the  insular  possessions  acquired  by  the  United  States  by 
treaty  from  Spain,  and  of  the  Hawaiian  Islands  annexed  b}'' 
resolution  of  Congress  of  July  7,  1898,  were  argued  before 
the  Supreme  Court  of  the  United  States  during  the  October 
term  of  1900.  iSMne  cases  were  argued,  all  but  one  of  which 
Avere  for  refunds  of  customs  duties  exacted  under  the  various 
tariff  laws  and  orders  either  on  goods  brouo^ht  from  Porto 
Rico,  the  Philippines  and  Hawaiian  Islands  into  other  ports 
of  the  United  States,  or  on  goods  brought  from  other  ports  of 
the  United  States  into  Porto  Rico.  The  cases  will  be  briefly 
considered  in  the  order  indicated  in  the  notes  hereto,^ 


lonjiing  to  the  United  States  ;  and 
nothing  in  this  Constitution  shall 
be  so  construed  as  to  Prejudice  any 
Claims  of  tlie  United  States,  or  of 
any  particular  State."  U.  S.  Const. 
Art.  IV,  §  3,  cl.  2. 

2  Shivehj  vs.  Bowlby,  U.  S.  Sup. 
Ct.  1894,  152  U.  S.  1,  p.  48,  Gray,  J., 
citing  numerous  cases.  See  also 
cases  cited  and  collated  in  Ixsular 
Cases  Appendix  at  end  of  this 
volume. 

118 


§  ei«. 

1  The  titles  to  the  Insular  Cases, 
the  Older  in  which  they  will  be 
considered,  and  the  points  involved 
in  each  case  are  as  follows  (see 
182  U.  S.  Reports  when  published): 

1  (616).  De  Limavs.  Bldicell.  For 
the  return  of  duties  exacted  under 
the  Dingley  act  on  goods  brought 
from  Porto  Rico  to  Xew  York  after 
the  ratification  of  the  treaty  and 
prior  to  the  Foraker  act. 


CH.  II.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  615 


Opinions  were  delivered  on  May  27,  1901,  in  all  of  the 
cases  except  those  involving  the  status  of  the  Philippines  and 
the  validity  of  duties  collected  in  Porto  Rico  under  the  For- 
aker  Act.^  The  cases  were  decided  after  most  of  this  vol- 
ume was  completed  and  "  in  plate."  They,  therefore,  can 
only  be  referred  to  briefly  at  this  point  where  a  space  was 
left  in  case  the  decisions  were  rendered  before  the  volume 
was  actually  in  press.  They  are  more  fully  discussed  at 
other  points  in  this  volume,  and  also  in  an  appendix. 

§  611).  The  Insular  Cases ;  Porto  Rico  and  the  Dingley 
Act. — Two  of  the  Insular  Cases  ^  were  brought  to  recover 
duties  on  goods  brouo-ht  from  Porto  Rico  to  New  York  af- 
ter  the  ratification  of  the  treaty  of  Paris,^  and  prior  to  the 

2  (616).  Goetze  vs.  United  States. 
Same. 

3  (61c).  Fotirteen  Diamond  Rings, 
Emil  Pepke,  Claimant,  vs.  United 
States.  To  recover  goods  brought 
from  Manila  to  Chicago,  seized  for 
unpaid  duties  under  the  Diugley 
act. 

4  {Qld).  Grossman  vs.  United 
States.  To  recover  duties  exacted 
on  goods  brought  from  Hawaiian 
Islands  after  passage  and  approval 
of  the  resolution  of  annexation. 

5  (61e).  Dooley,  Smith  &  Go.  vs. 
United  States,  No.  1.  To  I'ecover 
duties  paid  in  Porto  Rico  on  goods 
brought  from  New  York  after  the 
making  of  the  treaty  and  prior  to 
the  Foraker  act. 

6  (61e).  Armstrong  vs.  United 
States.     Same. 

7  (61/).  Bownes  vs.  Bidwell.  To 
recover  duties  exacted  on  goods 
brought  from  Porto  Rico  to  New 
York  under  tiie  Foraker  act. 

8  (61;/).  Dooleij,  Smith  &  Go.  vs. 
United  States,  No.  2.  To  recover 
duties  paid  in  Porto  Rico  on  goods 
broiiglit  from  New  York  to  Porto 
Rico  under  the  Foraker  act. 

9  (61 /t).  Huus  vs.  N.  Y.  and  Porto 
Rico  S.  S.Go.  To  recover  pilotage 
from  an  American  steamship  on  the 


gi'ound  that  the  vessel  was  subject 
to  pilotage  laws  because  engaged 
in  foreign  trade. 

After  these  cases  had  been  ar- 
gued in  the  Supreme  Court  a  reso- 
lution was  passed  by  the  House  of 
Representatives  on  Februaiy  9, 
1901,  (the  Senate  concurred  on  Feb- 
ruary 1.5,  1901, )  pi'oviding  for  pi-int- 
ing  twelve  thousand  copies  of  the 
records,  briefs  and  arguments  in  all 
of  the  nine  cases  above  referred  to. 

The  volume  consists  of  1075 
pages  of  records,  briefs,  arguments 
and  exhibits,  besides  an  analytical 
index  of  39  pages;  for  title  in  full 
of  this  volume  see  Insular  Cases 
Appendix  at  end  of  this  volume. 

2 The  cases  which  were  not  de- 
cided on  May  27,  1901,  were  decided 
on  December  2,  1901.  The  opin- 
ions of  the  court  and  the  dissent- 
ing opinions  are  included  in  full  in 
the  Insular  Cases  Appendix 
(Supplement),  pp.  ^)6d,  et  seq.,  of 
this  volume.  They  will  be  offi- 
cially reported  in  183  or  184  U.  S. 
Rep. 

§615. 

^DeLima  vs.  Bidwell,  and  Goetze 
vs.  United  States,  182  U.  S.  1. 

2 The  treaty  was  signed  in  Paris 
December  10,  1898;  was  ratified  by 

119 


TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  H. 


Foraker  act.^  The  duties  were  imposed  and  collected  under 
the  act  of  July,  1897,^  known  as  the  Dingley  act;  the  con- 
signees claimed  that  the  merchandise  was  tree  because  Porto 
Rico  was  part  of  the  United  States ;  the  collector  claimed 
that  for  tariff  purposes  Porto  Rico  remained  a  foreign  coun- 
try until  Congress  legislated  in  regard  to  it.  The  duties  were 
paid  under  protest.  Some  of  the  consignees  proceeded  un- 
der the  Customs  Administrative  Act^  before  the  Board  of 
General  Appraisers,  which  upheld  the  Collector,^  and  then 
appealed  from  the  appraisers  to  the  United  States  Circuit 
Court, which  affirmed  the  appraisers;^  others  brought  com- 
mon-law actions  against  the  collector  personally  on  the 
ground  that  the  exaction  was  illegal  and  a  mere  trespass.^ 
In  this  case  the  United  States  Circuit  Court  sustained  the 


the  President  and  Senate  of  the  Uni- 
ted Slates  February  6,  1899,  and 
by  the  Queen  Regent  of  Spain 
March  19,  1899  (30  U.  S.  Stat,  at  L. 
1754);  the  ratifications  were  ex- 
changed and  tlie  treaty  proclaimed 
at  Washington  April  11,  1899. 

3  The  Foraker  act  was  passed 
April  12,  1900;  it  took  effect  May  1, 
1900,  31  U.  S.  Stat,  at  L.  p.  77, 
ch.  191. 

4  The  present  tariff  law  under 
which  duties  are  collected  on  mer- 
chandise, commonly  known  as  the 
Dingley  act,  was  passed  July  24, 
1897,  30  Stat,  at  L.  p.  151,  ch.  11. 
The  first  section  is  as  follows: 

Be  it  enacted,  &c. :  That  on  and 
after  the  passage  of  this  Act,  un- 
less otherwise  specially  provided 
for  In  this  Act,  there  shall  be 
levied,  collected,  and  paid  upon  all 
articles  imported  from  foreign 
countries,  and  mentioned  in  the 
schedules  herein  contained,  the 
following  rates  of  duty  which  are, 
by  the  schedules  and  paragraphs, 
respectively  presented,  namely: 
(then  follow  the  schedules). 

5  The    Customs    Administrative 

120 


Law  approved  June  10, 1890, 26  U.  S. 
Stat,  at  L.  p.  131,  provides  for  the 
method  of  recovering  duties  ille- 
gally exacted  on  imported  merchan- 
dise by  collectors.  In  the  Insular 
Canes  it  was  held  that  this  law  does 
not  apply  to  duties  illegally  exacted 
on  goods  which  are  not  imported 
in  the  sense  that  that  word  is  used 
in  the  tariff  laws;  that  is  that  only 
such  goods  as  are  brought  from/or- 
eif/n  ports  are  imported.  See  cases 
collated  in  Insular  Cases  Appen- 
dix on  this  point,  especially  Wood- 
ruff vs.  Par/mm,U.  S.  Sup.  Ct.  1868, 
8  Wall.  123,  Miller,  J. 

•^  Protests  of  Mosle  Brothers  and 
John  H.  Goetze  &  Co.,  before  the 
U.  S.  General  Appraisers  at  New 
York,  February  14,  1900;  Opinion 
by  Somerville,  General  Ap- 
praiser, 22018,  G.  A.  4658— Synop- 
sis of  Treasury  Decisions. 

'  Goetze  vs.  United  States,  U.  S. 
Cir.  Ct.  S.  D.  N.  Y.  1900,  103  Fed. 
Rep.  72,  Townsend,  J. 

8  DeLima  vs.  George  R.  Bidwell, 
(collector  of  the  Port  of  New  York) 
originally  brought  in  New  York 
State  Supreme  Court  and  removed 


CH.  n.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  61b 

Collector's  demurrer.^  A  suit  was  also  brought  in  the  Uni- 
ted States  Circuit  Court  to  enjoin  the  Collector  from  contin- 
uing to  exact  duties  under  the  Dingley  Act  after  Porto  Rico 
had  become  a  part  of  the  United  States.  The  motion  was 
denied  and  no.appeal  was  taken  from  the  decision  of  the  cir- 
cuit JLidge.^''  Appeals  were  taken  to  the  Supreme  Court  in 
many  of  these  cases.  That  court  reversed  the  Circuit  Court 
and  the  Board  of  Appraisers,  and  decided  that  territory  could 
not  be  domestic  and  foreign  at  the  same  time ;  that  after 
the  exchange  of  ratification  of  the  treaty  of  Paris,  Porto 
Rico  ceased  to  be  foreign,  and  therefore  the  Dingley  Act 
did  not  apply  to  merchandise  brought  from  ^orto  Rico  to 
New  York,  and  that  the  duties  collected  under  protest  must  be 


by  defendant  to  United  States  Cir- 
cuit Court  for  Southern  District  of 
New  York,  1900. 

^  Pro  forma,  see  record  of  Insular 
Cases. 

10  Lascellesvs.  Bklwell,  U.  S.  Cir. 
Ct.  S.  D.  K  Y.  1900,  102  Fed.  Kep. 
1004,  Lacombe,  J.  In  this  case  the 
author  of  tliis  volume  appeared  as 
attorney  and  counsel  for  the  plain- 
tiffs who  were  dealers  in  Porto  Rico 
sugar.  Tlie  injunction  was  asked 
on  the  ground  that  Porto  Rico  was 
no  longer  foreigo,  but  had  become 
a  part  of  the  territory  of  the  United 
States,  if  not  upon  the  signing  of 
the  treaty,  not  later  than  the  ex- 
change of  ratifications.  On  the  ar- 
gument the  District  Attorney  asked 
the  Court  to  decide  preliminarily 
whether  an  injunction  would  be 
granted  under  any  circumstances, 
in  view  of  the  provisions  of  the  Cus- 
toms Administrative  Law.  The 
Court  consented  to  consider  that 
point  before  requiring  the  District 
Attorney  to  argue  the  question  of 
Porto  Rico's  status.  This  case  was 
therefore  decided  exactly  as  though 
the  goods  had  been  brought  from 
Boston  or  Savannah.  The  entire 
decision  as  reported  is  as  follows:  j 


"  March  19,  1900.— Motion  denied 
on  authority  of  Crimkshank  vs.  Bid- 
well,  176  U.  S.  73.  Complainant 
has  an  adequate,  summary,  and  ex- 
peditious remedy  at  law  under  the 
Customs  Administrative  Act."  No 
appeal  was  taken  in  this  case.  Un- 
der the  decision  in  DeLimavs.  Bid- 
loell,  the  ruling  of  the  Circuit  Judge 
was  error  as  the  Supreme  Court 
decided  that  the  Customs  Adminis- 
trative Act  does  not  apply  to  duties 
illegally  exacted  on  goods  which 
are  not  imported,  i.  e.,  not  brought 
from  a  foreign  country.  The  chief 
ground  urged  by  the  plaintiffs  in 
Lascelles  vs.  Bidwell  was  that  the 
continued  exaction  of  duties  by  the 
collector  on  goods  from  Porto  Rico 
had  broken  up  the  business  of  bring- 
ing sugar  therefrom,  and  that  for 
such  continued  loss  of  business 
there  was  no  remedy  at  law,  as  no 
opportunity  was  given  of  paying  the 
duties  on  goods  coming  from  Porto 
Rico  during  the  period  of  illegal 
exaction  and  it  was  impossible  to 
measure  the  pecuniary  loss  sus- 
tained by  the  loss  of  business. 
This  point  does  not  appear  to  have 
been  considered. 

121 


§  61./ 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[cH.  n. 


refunded."  Mr.  Justice  Brown  delivered  the  opinion  of  the 
court,  Chief  Justice  Fuller  and  Justices  Harlan,  Brewer 
and  Peclvham  concurred  with  him  ;  ^~  Mr.  Justice  McKenna 
wrote  a  dissenting  opinion  in  which  Justices  Shiras  and 
White  concurred  ;  Mr.  Justice  Gray  also  delivered  a  brief 
dissenting  opinion. 

§  61c.  The  status  of  the  Philippines ;  The  Diamond 
Rin^  Case. — Although  the  Supreme  Court  decided  that 
Porto  Rico,  on  the  exchange  of  ratifications  of  the  treaty 
of  Paris,  became  domestic  territory,  and  duties  on  merchan- 
dise could  not  be  collected  under  the  Dingle}^  Tariff  act  as 
though  it  wei-e  a  foreign  countr}'-,  the  Court  withheld  the 
decision  in  a  similar  case  involving  the  dutiability  of  goods 
brought  from  the  Philippine  Islands  for  over  six  months.^ 
Fourteen  diamond  rings  brought  from  Manila  were  seized  in 
Chicago  for  nonpayment  of  duties.  The  owner  filed  a  claim 
denying  that  the  rings  were  dutiable,  as  they  were  brought 
from  one  part  of  the  United  States  to  another.  The  United 
States  demurred  to  the  claim  and  the  demurrer  was  sus- 
tained.2  A  writ  of  error  was  granted  by  the  Supreme  Court. 
In  the  DeLima  case,  which  involved  the  status  of  Porto 
Rico,  reference  was  made  to  the  fact  that  not  only  had  that 
island  been  ceded  to  the  United  States,  but  that  the  United 
States  was  in  possession^  of  the  Island.  \xi  the  Diamond 
Ring  case  the  effect  of  the  McEnery  Resolution,* passed  by 
the  Senate  the  day  after  the  treaty  of  peace  was  ratified, 
was  considered  at  length  and  the  Court  held  that  it  did  not 
affect  the  construction  of  the  treaty. 

§  <o\d.  The  Status  of  the  Hawaiian  Islands. — No  sepa- 


^^  DeLima  vs.  Bidioell,  U.  S.  Sup. 
Ct.  1901,  182  U.  S.  1,  Brown,  J. 

Goetze  vs.  United  States,  U.  S. 
Sup.  Ct.  1901, 182  U.  S.  221,  Brown, 
J.  (No  opinion;  reference  simply 
being  made  to  the  opinion  just  de- 
livered in  DeLima  vs.  Bidwell. ) 

^■•^For  abstracts  of  the  opinions  in 
this  case  see  Appendix  at  end  of 
this  volume.  The  cases  have  been 
reported  in  some  of  tlie  Lawyers' 
Cooperative  Reports,  and  will  ap- 
pear in  182  U.  S.  Reports. 

122 


§  61  r. 

1  Fourteen  Diamond  Eings,  Pepke, 
Claimant,  vs.  United  States,  U.  S. 
Ct.  1901,  (decided  December  2, 
1901). 

2  U.  S.  District  Court,  Northern 
Dist.  of  111.,  July,  1900,  Kohlsaat, 
J.  (pro  forma). 

^See  Insular  Cases  Appendix 
nt  end  of  this  volume;  consult  in- 
dex, thereto,  for  page  references. 

*See  McEnery  Resolution  on  p. 
565,  post. 


CH.  n.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  Q\e 


rate  opinion  was  rendered  in  the  Hawaiian  Islands  cases.^ 
Duties  paid  under  protest  on  goods  brought  from  Honolulu 
to  New  York  were  ordered  to  be  refunded  on  the  grounds 
which  were  stated  in  the  opinion  in  DeLima  vs.  Bidioell? 

§  61g.  The  Foraker  Act. — The  cases  referred  to  in  the 
preceding  sections  involved  the  payment  of  duties  imposed 
and  collected  on  merchandise  brought  to  New  York  and  Chi- 
cago from  Porto  Rico,  Manila  and  Honolulu,  under  the  pro- 
visions of  the  Dingley  Act,  the  respective  collectors  claiming 
that  the  places  last  named  remained  foreign,  so  far  as  the  rev- 
enue laws  of  the  United  States  were  concerned,  until  Congress 
by  appropriate  legislation  determined  otherwise.  After 
May  1, 1900,  however,  duties  were  collected  on  goods  brought 
from  Porto  Rico  to  New  York  under  the  Foraker  act,^  so- 
called  because  the  senior  senator  from  Ohio  introduced  it; 
this  act  provided  that  duties  should  be  levied  on  merchandise 
brought  from  Porto  Rico  to  other  ports  of  the  United  States 
at  the  rate  of  fifteen  per  cent  of  the  duties  collected  on  similar 
articles  from  foreign  ports  under  the  existing  tariff  act.-  Du- 
ties were  paid  under  protest, and  the  owners  brought  suits  ^ 
against  the  collector  for  the  amounts  paid,  claiming  that  the 
act  in  this  respect  was  in  violation  of  the  provisions  of  the 
Constitution  of  the  United  States  in  regard  to  uniformity  of 
duties  and  imposts  throughout  the  United  States.  The  Uni- 
ted States  Circuit  Court  sustained  a  demurrer  to  the  com- 
plaint,* and  the  Supreme  Court  affirmed  this  decision  on  the 


§61(Z. 

1  Crossman  vs.  United  Stntes, 
U.  S.  Sup.  Ct,  1901,  182    U.  S.  221. 

2  The  entire  opinion  is  as  follows 
(also  entitled  in  Geotze  vs.  United 
States,  Brown,  J.):  "As  the  sole 
question  presented  by  the  record 
in  these  cases  was  whether  Porto 
Rico  and  the  Hawaiian  Islands 
were  foreign  countries  within  the 
meaning  of  the  tariff  laws,  we 
must  hold,  for  the  reasons  stated  in 
DeLima  vs.  Bidwell,  just  decided, 
that  the  board  of  general  appraisers 
had  no  jurisdiction  of  the  cases. 
The  judgments  of  the  Circuit  Court 
are  therefore  reversed,  and  the 
cases  remanded  to  that  court  with 


instructions  to  reverse  the  action 
of  tlie  board  of  general  appraisers." 

§  61e. 

1 "  An  act  temporarily  to  provide 
revenue  and  a  civil  government  for 
Porto  Rico  and  for  other  purposes ; " 
approved  April  12,  1900,  31  U.  S. 
St.  at  L.  77,  ch,  191.  Extracts  con- 
taining the  tariff  provisions  of  this 
act  are  quoted  in  the  opinion  of 
Fuller,  Ch.  J.,  in  Dowries  vs.  Bid- 
well,  182  U.  S.  244,  see  p.  349. 

2  The  Dingley  Act,  approved  July, 
1897,  30  St.  at  L.  p.  151,  see  note  4, 
p.  120,  ante. 

3  Dnivnea  vs.  Bidwell,  U.  S.  Sup. 
Ct.  1901,  182  U.  S.  244. 

*  U.  S.  Cir.  Ct.  S.  D.  N.  Y.  Novem- 
123 


§  01/  TREATV-:\rAKTNn  POWER  OF  THE  U.  S.  [ciI.  It. 

ground  that  Congress  has  power  to  levy  duties  on  goods 
brought  from  a  territory  of  the  nature  of  Porto  Rico  to  other 
ports  of  the  United  States. 

This  is  the  most  important  of  the  decisions  rendered  in 
the  Instdap  Cases.  There  was  no  majority  opinion.  Mr.  Jus- 
tice Brown  announced  the  "  conclusion  and  judgment  of  the 
Court."  Mr.  Justice  White  delivered  an  opinion  reaching 
the  same  result  but  by  a  different  process  of  reasoning.  Jus- 
tices Shiras  and  McKenna  concurred  with  Mr.  Justice  White ; 
Mr.  Justice  Gray  also  concurred  with  him,  but  filed  a  brief 
separate  opinion.  Chief  Justice  Fuller  wrote  a  dissenting 
opinion  in  which  Justices  Harlan,  Brewer,  and  Peckham  con- 
curred ;  Mr.  Justice  Harlan  also  wrote  a  separate  opinion. 
The  opinions  are  so  lengthy  that  it  is  impossible  even  to  give 
an  abstract  of  them  in  this  section  or  in  the  notes.^ 

§  Giy.  Duties  paid  in  Porto  Rico. — The  cases  referred  to 
in  the  preceding  sections  involved  duties  which  were  paid  in 
Xew  York  and  Chicago  on  merchandise  brought  froin  the 
new  possessions.  There  were  other  cases  which  involved 
the  right  of  the  United  States  to  impose  duties  or  merchan- 
dise brought  from  ports  of  the  States  to  Porto  Pico.^  Duties 
were  imposed  and  collected  under  the  old  Spanish  tariff  laws 
for  a  brief  period,  then  under  military  orders  given  by  the 
President,  and  subsequently  under  the  Foraker  act.  Two 
suits  were  brought,  one  for  duties  paid  prior  to  May  1, 1900, 
under  the  Sjianish  tariff  laws  and  the  militar}'.  government, 
and  the  other  for  duties  paid  after  that  date  under  the  For- 
aker act.  In  the  case  involving  duties  paid  prior  to  May  1, 
1900,  the  Court  sustained  the  right  to  collect  duties  under 
any  laws  or  orders  in  force  prior  to  the  exchange  of  the 
ratifications  of  the  treaty  on  April  11,  1899,  when  Porto 
Pico  became  domestic  territor3^^     It  also  decided  that  all 

ber,      1890,    Lacombe,      J.,      (pro  l  States,  No.  1 ;  Same  vs.  Same,  lifo.  2, 


forma).  See  Insular  Cases  Record. 
5  The  opinions  in  this  case,  over 
one  hundred  pages  in  length,  are 
reported  in  182  U.  S.  Rep.;  for  a 
synopsis  see  Insular  Cases  Ap- 
pendix at  end  of  this  volume. 

§61/. 

1  Booley,  Smith  &  Co.  vs.  United 

124 


U.S.  Sup.  Ct.  1901,  No.  1,  182 
U.  S.  222;  No.  2  not  yet  decided. 
Argued  January  ,  1901;  Armstrong 
vs.  United  States,  V.  S.  Sup.  Ct. 
1901.     182  U.  S.  24.3. 

2  "  In  their  legal  aspect,  the  duties 
exacted  in  this  case  were  of  three 
classes:  (1)  The  duties  prescribed 


CH.  II.]  SOVEREIGNITY  AND  TERRITORIAL  ACQUISITION.  §  61/ 


duties  paid  after  the  exchange  of  ratifications  and  until  the 
Foraker  act  took  effect  were  illegally  imposed  and  must  be  re- 
funded. The  case  involving  the  duties  paid  after  the  Foraker 
act  took  effect  has  not  yet  been  decided.  The  counsel  who  ar- 
gued that  case  laid  great  stress  on  the  point  that  the  imposition 
by  Congress  of  duties  on  merchandise  taken  from  a  State  to 
any  other  territory  of  the  United  States  is  equivalent  to  laying 
an  export  tax  and,  therefore,  directly  prohibited  by  the  Consti- 
tution.^ There  were  no  cases  corresponding  to  these  Porto 
Rico  cases,  and  affecting  duties  paid  in  the  Philippines  and 
Hawaiian  Islands  on  merchandise  from  other  ports  of  the 
United  States. 


by  General  Miles  under  order  of 
July  26,  1898,  which  merely  ex- 
tended the  existing  regulations; 
(2)  the  tariffs  of  August  19,  1898, 
and  February  1, 1899,  prescribed  by 
the  President  as  Commander-in- 
Chief,  which  continued  in  effect 
until  April  11,  1899,  the  date  of  the 
ratification  of  the  treaty  and  the 
cession  of  the  island  to  the  United 
States;  (3)  from  the  ratification  of 
the  treaty  to  May  1, 1900,  when  the 
Foraker  act  took  effect. 
"  Duties  prior  to  Ratification. 
"  There  can  be  no  doubt  with  re- 
spect to  the  first  two  of  these 
classes,  namely,  the  exaction  of 
duties  under  the  war  power,  jjrior  to 
the  ratification  of  the  treaty  of 
peace.  While  it  is  true  the  treaty 
of  peace  was  signed  December  10, 
1898,  it  did  not  take  effect  upon 
individual  rights  until  there  was 
an  exchange  of  ratification.  Ha- 
ver vs.  Yaker,  9  Wall.  32,  sub  nom. 
Jecker  vs.  Mayee,  19  L.  Ed.  .571. 
Upon  the  occupation  of  the  coun- 
try by  the  military  forces  of  the 
United  States,  the  authority  of  the 
Sjianish  government  was  supersed- 
ed but  the  necessity  for  a  revenue 
did  not  cease."  The  opinion  then 
sustains  the  right  to  impose  and 
collect  customs  as  a  war  measure 


on  all  goods,  citing  numerous 
cases.  "The  right  to  exact  duties 
on  goods  imported  into  Porto  Rico 
from  New  York  arises  from  the 
fact  that  New  York  was  still  a  for- 
eign country  with  respect  to  Porto 
Rico,  and  from  the  correlative  right 
to  exact  at  New  York  duties  upon 
merchandise  imported  from  that 
island." 

"Duties  after  Ratification. 

"  Different  considerations  apply 
with  respect  to  duties  levied  after 
the  ratification  of  the  treaty  and 
the  cession  of  the  island  to  the 
United  States.  Porto  Rico  then 
ceased  to  be  a  foreign  country,  and, 
as  we  have  just  held  in  BeLima  vs. 
Bidwell,  the  right  of  the  collector 
of  New  York  to  exact  duties  upon 
imports  from  that  island  ceased 
with  the  exchange  of  ratifications." 
The  opinion  then  holds  that  while 
there  is  no  doubt  as  to  the  right  to 
administer  the  government  under 
the  war  power  until  Congress  acted, 
there  is  no  right  to  exact  duties 
upon  merchandise  brought  from 
the  United  States. 

^  Clause  .5,  section  9,  Article  I,  of 
the  Constitution  is  as  follows:  "No 
tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State."  For 
the  most  recent  utterances  of  the 

125 


§01A 


TREATY-MAKING  POWER  UF  THE  U.  S.  [CH.  11. 


§  Glf/.  The  Porto  Kico  i)ilotage  case. — Another  case  which 
was  decided  ou  May  27,  i'JOi,  involving  the  status  of  Porto 
Rico  and  its  rehitions  to  other  ports  of  the  United  States, 
was  the  Pilotage  case.^  Under  the  pilotage  laws  of  the  State 
of  iS^ew  York,  American  vessels  engaged  in  the  coastwise 
trade  are  not  required  to  take  pilots  on  entering  the  harbor 
of  ]N^ew  York ;  vessels  not  engaged  in  the  coastwise  trade 
are  required  to  take  pilots  or  to  pay  half  pilotage  fees  in 
case  of  refusal.  An  American  vessel  from  Porto  Pico  hav- 
ing refused  to  take  a  pilot,  the  vessel  was  libelled  for  half 
the  amount  of  the  regular  fees.  The  United  States  District 
Court  dismissed  the  libel.^  The  Circuit  Court  of  Appeals 
certified  to  the  Supreme  Court  certain  questions  as  to 
whether  Porto  Pico  remained  a  foreign  port  in  the  sense  in 
which  those  words  are  used  in  the  New  York  pilotage  laws 
after  the  exchange  of  ratifications  of  the  treaty  of  Paris.^ 
The  Supreme  Court  decided  that  the  ports  of  Porto  Pico  are 
domestic  ports  and  that  vessels  engaged  in  trade  between 
those  ports  and  other  ports  of  the  United  States  are  engaged 
in  the  coastwise  trade  and  not  obliged  to  take  pilots  under 
the  Xew  York  laws  as  though  they  came  from  foreign  ports. 

§  6U.  Summary  of  decisions  in  Insular  Cases. — The 
principal  points  decided  in  the  Insular  Cases,  therefore,  can 
be  very  briefly  summarized  as  follows: 

1st.  Territory,  when  ceded  to  the  United  States  by  a 
foreign  power,  and  actual  possession  thereof  has  been  deliv- 
ered to  and  received  by  the  United  States,  ceases  to  be 
foreign  territory,  as  that  expression  is  used  in  the  tariff 
laws  of  the  United  States,  and  duties  cannot  be  exacted  un- 
der tariff  laws  providing  for  duties  on  imports  from  foreign 
countries.^  This  also  applies  to  territory  annexed  by  con- 
gressional resolution,  as  were  the  Hawaiian  Islands.^ 


Supreme  Court  in  regard  to  export 
taxes,  see  Fairbank  vs.  United 
States,  U.  S.  Sup.  Ct.  1901.  181 
U.  S.  283,  Brewer,  J. 

§61.'7. 

1  Huus  vs.  N.  Y  and  Porto  Bico 
S.  S.  Co.,  U.  S.  Sup.  Ct.  1901,  182 
U.  S.  392,  Brown,  J. 

2  See  Record  of  Insular  Cases. 

126 


3  For  these  questions,  and  cases 
on  definition  of  foreign  and  coast- 
wise trade,  see  Insular  Cases  Ap- 
pendix at  end  of  this  volume. 

§  61/i. 

'^DeLimavs.  Bidwell,  Goetze  vs. 
United  States ;  see  §  016,  p.  119,  ante. 

2  Grossman  vs.  United  States ;  see 
§  61  d,  p.  122,  ante. 


CH.  U.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  Qlh 

2d.  Congress  has  power  to  make  rules  and  regulations 
regarding  such  territory,  including  the  right  to  impose  duties 
on  merchandise  brought  there  from  other  ports  of  the 
United  States,  and  in  so  doing,  Congress  is  not  bound  by  the 
constitutional  limitations  in  regard  to  uniformity  of  imposts 
and  duties  throughout  the  United  States.^ 

3d.  After  the  United  States  has  acquired  and  obtained 
possession  of  territory,  as  in  the  case  of  Porto  Rico,  American 
vessels  trading  between  ports  therein  and  other  ports  of  the 
United  States  are  engaged  in  coastwise,  and  not  in  foreign, 
trade  so  far  as  pilotage  laws  are  concerned.^ 

4th.  After  the  United  States  has  acquired  territory  by 
conquest  and  by  military  occupation  and  subsequently  by 
cession,  the  former  laws,  as  modified  by  the  military  govern- 
ment established  under  the  war  power,  remain  in  force  until 
the  exchange  of  ratification  of  the  treaty  of  cession,  and  until 
that  time  the  territory  does  not  become  "domestic"  so  as  to 
prevent  the  collection  of  duties  on  merchandise  brought 
from  other  parts  of  the  United  States.^ 

All  of  the  above  points  were  decided  by  a  divided  court, 
dissenting  opinions  being  delivered  in  all  the  cases,  in  one  in- 
stance the  majority  of  the  court  being  divided  on  the  method 
of  reasoning  although  the  same  conclusion  was  reached.^ 

None  of  the  Insular  Cases  involved  right  to  collect  duties 
on  merchandise  brought  from  other  ports  of  the  United 
States  to  the  Philippine  Islands  under  the  Dingley  tariff  or 
under  the  various  tariffs  established  under  executive  orders ;' 
nor  did  any  of  the  decisions  determine  the  status  of  the  Phil- 
ippine Islands,^  the  personal  rights,  liberties  or  citizenship  of 
the  inhabitants  of  any  of  the  recently  acquired  territory. 


^Downes  vs.  Bidwell ;  see  §  61e, 
p.  123,  ante. 

*Huus  vs.  N.  Y.  &  Porto  Rico 
S.  S.  Co.  ;  see  §  eigr,  p.  126,  ante. 

6  Dooleij,  Smith  &  Co.  vs.  United 
States,  No.  1 ;  Armstrong  vs.  Uni- 
ted States;  see  §61/,  p.  124,  ante. 

''See  abstracts  of  opinion  in  In- 
sular Cases  Appb:ndix  at  end  of 
the  volume;  consult  special  index 
thereto. 


7  See  note  4  to  §  308,  p.  441,  post, 
as  to  Spooner  Amendment  for  gov- 
ernment of  the  Philippine  Islands. 

*  Several  attempts  have  been 
made  to  raise  questions  before  the 
courts  involving  the  personal 
riglits  and  liberties  of  inhabitants 
of  the  recently  acquired  territories. 
Some  of  those  cases  are  referred  to 
in  §  385  of  chap.  XII,  post. 

127 


§62 


TREATY-MAKIMG  POWEU  OF  THE  U.  S. 


[CH.  II. 


§  02.  The  Mormon  Church  Case ;  Justice  Bradley's  opin- 
ion.— ^[any  of  the  cases  rei'erred  to  in  tlie  preceding  notes, 
inclutling  Chief  Justice  Marshall's  decision  in  the  Canter 
case,  in  regard  to  the  extensive  powers  possessed  b}^  Congress 
over  the  territories  luul  been  decided  ])rior  to  18S*J,  but  some 
points  still  remained  to  be  cleared  up  when  the  confiscation 
acts  passed  by  Congress  in  regard  to  the  Mormon  Church 
were  brought  before  the  Supreme  Court  for  adjudication.^ 

The  acts  were  of  such  a  nature  that,  had  they  affected 
property  within  the  limits  of  any  State,  they  would  unques- 
tionably have  been  declared  unconstitutional.  They  af- 
fected, however,  property  in  territory  which  had  been  ac- 
quired by  the  United  States  from  Mexico,  and  which  had 
never  possessed  statehood.  The  question  of  the  extent  of 
Congressional  power  over  the  territories  thus  being  involved, 
Mr.  Justice  Bradley  availed  himself  of  the  opportunity  to 
express  the  opinion  of  the  court  as  to  the  status  of  such  ter- 
ritories in  upholding  the  acts,  as  follows : 

"  The  power  of  Congress  over  the  Territories  of  the  United 
States  is  general  and  plenary,  arising  from  and  incidental  to 
the  right  to  acquire  the  Territory  itself,  and  from  the  power 
given  by  the  Constitution  to  make  all  needful  rules  and  reg- 
ulations respecting  the  Territory  or  other  property  belong- 
ing to  the  United  States.  It  would  be  absurd  to  hold  that  the 
United  States  has  power  to  acquire  territory  and  no  power 
to  govern  it  when  acquired.     .     ,     .     Doubtless  Congress  in 


§62. 

1  The  acts  of  Congress  referred  to 
in  the  Mormon  Chu-'ch  case  are  as 
follows  : 

Organic  act  organizing  a  terri- 
torial government  of  Utah,  Sep- 
tember 9,  1850,  (9U.  S.  Statutes  at 
Large,  45:5),  and  other  acts  supple- 
mental thereto.  "  An  act  to  punish 
and  prevent  the  Practice  of  Poly- 
gamy in  the  Territories  of  the 
United  States  and  otlier  Places  and 
disapproving  and  annulling  Certain 
Acts  of  the  Legislative  Assembly 
of  the  Territory  of  Utah"  passed 
Julv  1,  18G2,  112  U.  S.  Statutes  at 

128 


Lnrge,  501),  U.  S.  Revised  Statutes, 
§  5:552  in  regard  to  polygamy.  The 
Edmunds  act  amending  §  535-i  of  the 
Revised  Statutes  passed  March  22, 
1882,  (22U.  S.  Statutes  nt  Large,  :50). 
Act  of  February  19,  1887,  making 
additional  provisions  as  to  the  pros- 
ecutions of  pol}'gamy  and  by 
§§  13,  17  and  26,  which  are  quoted 
at  length  on  pp.  7-9,  1:36  U.  S. 
Rop.,  confiscating  the  property  of 
the  Mormon  Church  which  was 
known  as  the  Church  of  Jesus 
Christ  of  Latter-Day  Saints.  (24 
U.  S.  Statutes  at  Large,  637—641.) 


CH.  II.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  64 

legislating  for  the  Territories  would  be  subject  to  those  fun- 
damental limitations  in  favor  of  ])ersonal  rights  which  are 
formulated  in  the  Constitution  and  its  amendments ;  but  these 
limitations  would  exist,  rather  by  inference  and  the  general 
spirit  of  the  Constitution  from  which  Congress  derives  all 
its  powers,  than  by  any  express  and  direct  application  of  its 
provisions."  ^ 

§63.  Subsequent  cases  involving  same  point.— The  doc- 
trine laid  down  in  Marshy  vs.  Ramsey'^  and  the  Mormon 
Church  case,^  that  the  power  of  the  United  States  to  govern 
the  territories  is  [)lenary  has  been  constantly  affirmed  and  fol- 
lowed by  the  Supreme  Court.  Chief  Justice  Waite,  and  Jus- 
tices Matthews,  Bradley,  Gray  and  Harlan,  as  well  as  others, 
have  delivered,  and  concurred  in,  opinions  sustaining  this 
plenary  power.  There  is  not  room  to  quote  all  of  these  de- 
cisions and  opinions,  but  most  of  them  will  be  found  in  the 
notes  to  section  61.  It  is  proper,  however,  to  refer  to  the 
opinion  of  Mr.  Justice  Gray  in  Shively  vs.  Bowlhy,  in  which 
he  says:  "By  the  Constitution,  as  is  now  well  settled,  the 
United  States,  having  rightfully  acquired  the  Territories, 
and  being  the  only  government  which  can  impose  laws  upon 
them,  have  the  entire  dominion  and  sovereignty,  national 
and  municipal,  Federal  and  state,  over  all  the  Territories, 
so  long  as  they  remain  in  the  territorial  condition."'^ 

There  seems  to  be  no  doubt  therefore  that  Congress  can 
legislate  for  the  territories  in  a  different  manner,  and  with 
far  greater  power  than  it  can  legislate  in  regard  to  matters 
affecting  states. 

§  6Jr.  Constitutional  limitations,  or  limitations  l)y  funda- 
mental principles. — In  the  closing  sections  of  the  last  chap- 
ter, the  theory  of  limitations  by  fundamental  principles  was 
discussed^;  the  basis  of  that  theory  can  be  found  in  the  de- 
cisions of  the  Supreme  Court  which  have  been  cited  in  the 
notes  to  the  last  two  sections. 


2  Mormon  Church  vs.  United  Stated, 
U.  S.  Sup.  Ct.  1890,  136  U.  S.  1, 
pp.  42-44,  Bradley,  J. 

§63. 

1114  U.  S.  15. 

2 136  U.  S.  1,  p.  42,  and  see  §  62, 
ante. 

9  129 


3  Shirely  vs.  Boivlhy,  U.  S.  Sup. 
Ct.  1894,  1.'52  U.  S.  1,  p.  48,  Gray,  J., 
and  see  numerous  cases  cited  in 
the  opinion  on  tliis  i)()iut. 

§64. 

1  See  §§  30-41,  chap  I.,  ante. 


§  66  TREATY-MAKING  POWEK  OF  THE  U.  S.  [CH.  TT. 

After  citing  Mr.  Justice  Matthews  in  Murphy  vs.  Ramsey^ 
Mr.  Justice  Brailley  said,  in  the  Mormon  Cliurch  case  al- 
ready cited ^:  "Doubtless  Congress  in  legislating  for  the 
Territories  would  be  subject  to  those  fundamental  limita- 
tions in  favor  of  personal  rights  which  are  formulated  in 
the  Constitution  and  its  amendments ;  but  these  limitations 
would  exist,  rather  by  inference  and  the  general  spirit  of  the 
Constitution  from  which  Congress  derives  all  its  powers, 
than  by  any  express  and  direct  application  of  its  provisions." 
Chief  Justice  Chase  declared  in  Clinton  vs.  Englebrecht: 
"  The  theor}^  upon  which  the  various  governments  for  por- 
tions of  the  territory  of  the  United  States  have  been  organ- 
ized, has  ever  been  that  of  leaving  to  the  inhabitants  all  the 
powers  of  self-government  consistent  with  the  supremacy  and 
supervision  of  National  authority,  and  with  certain  funda- 
mental principles  established  by  Congress."^ 

§  65.  Justice  Harlan's  opinion. — In  McAllister  vs.  United 
States^  Mr.  Justice  Harlan,  in  declaring  that  territorial  courts 
were  not  subject  to  the  limitations  in  the  Constitution  said 
that  "The  whole  subject  of  the  organization  of  territorial 
courts,  the  tenure  by  which  the  judges  of  such  courts  shall 
hold  their  offices,  the  salary  they  receive  and  the  manner 
in  which  they  ma}''  be  removed  or  suspended  from  office, 
was  left,  by  the  Constitution,  with  Congress  under  its  plenary 
power  over  the  Territories  of  the  United  States.  How  far 
the  exercise  of  that  power  is  restrained  by  the  essential  prin- 
ciples upon  which  our  system  of  government  rests,  and  which 
are  embodied  in  the  Constitution,  we  need  not  stop  to  inquire ; 
though  we  may  repeat  what  was  said  in  Mormon  Church  vs. 
United  States.''''  He  also  followed  the  opinion  of  Mr.  Jus- 
tice Bradley  as  expressed  in  the  Mormon  Church  case  and 
quoted  in  section  62  of  this  volume. 

§  ^'o.  General  summary  of  views. — To-day,  while  many  of 
our  most  distinguished  counsel  are  engaged  in  arguing  these 


2  Murphy  vs.  Ramsey,  U.  S.  Sup. 
Ct.  1885,  114  U.  S.  15,  42,  Mat- 
thews, J. 

3 136  LT.  S.  1,  p.  42,  and  see  §  62 
ante. 

*  Clinton  vs.  Englebrecht,  U.  S. 
130 


Sup.  Ct.  1871,  13  Wallace  434,  p.  441, 
Chase,  Ch.  J. 

§65. 

'^  McAlliste)-  vs.  United  States, 
U.  S.  Sup.  Ct.  1891,  141  U.  S.  174, 
p.  188,  Hablan,  J 


CH.  II.]  SOVEREIGNTY  AND  TEREITORIAL  ACQUISITION.  §  68 

questions  before  the  Supreme  Court,  which  tribunal  may  de- 
cide them  by  divided  opinions,  as  has  happened  in  many 
cases  involving  political  questions,  it  is  impossible  for  the 
author  of  a  text-book  to  predict  in  advance  what  the  deci- 
sion of  that  court  will  be,  and  it  would  be  highly  presump- 
tuous on  his  part  to  declare  what  it  should  be;  all  that  the 
author  can  do  under  such  circumstances,  therefore,  is  to  call 
the  attention  of  his  readers,  and  those  examining  this  subject, 
to  the  cases  which  have  already  been  decided,  and  those  which 
are  now  under  consideration  bearing  upon  this  question.^ 

§  67.  Government  of  territories  as  affected  by  treaties 
of  cession. — So  far  we  have  onlv  referred  to  the  right  of 
the  United  States  Government  to  govern  territory  under  pro- 
visions of  the  Constitution,  and  by  virtue  of  its  inherent 
power  to  do  so  as  an  attribute  of  sovereignty  and  national- 
ity. There  are  times,  however,  when  the  right  to  govern  is 
affected  by  clauses  or  stipulations  in  a  treaty  by  which  the 
territory  is  ceded  to  the  United  States. 

Questions  arising  under  those  stipuh\tions  do  not  form  a 
part  of  the  subject-matter  of  this  volume;  they  will  be  con- 
sidered in  their  proper  place  as  a  part  of  the  effect  of  ces- 
sions of  territory  and  change  of  sovereignty  upon  personal 
rights  and  liberties  and  upon  la\vs  and  customs  of  the  ceded 
territories.  There  are,  however,  a  few  specific  instances 
which  will  be  noted  in  tliis  volume. 

§  68.  Special  clauses  in  treaty  with  Spain  of  1898 The 

right  of  the  United  States  to  govern  the  territories  recently 
acquired  from  Spain  will  be  comi)licated,  so  far  as  decisions 
of  the  pending  cases  already  referred  to  are  concerned,  by 
the  final  clause  in  the  ninth  Article  of  the  Treaty  of  Paris, 
which  provides  that  the  civil  and  political  rights  of  the  na- 
tive inhabitants  of  the  ceded  territory  shall  be  determined 
by  the  Congress  of  the  United  States.^ 

Undoubtedly  when  the  United  States  is  obliged  to  accept 

§66. 

^See  cases  collated  in  notes  un- 
der §§61a-/i,  ante,  since  decided. 

§68. 

^  "  The  civil  rights  and  political 
status  of  tlie  native  inhaljitants  of 
the  territories  hereby  ceded  to  the 


United  States  shall  be  determined 
by  Congress."  Article  IX.  Treaty 
with  Spain,  December  10,  1898,  30 
U.  S.  Stat,  at  Large,  p.  1759,  and 
see  treaty  for  other  special  clauses 
as  to  rights  of  inliabitants  to  re- 
nounce or  retain  allegiance. 

131 


§  69  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  IJ. 

territory  as  a  part  of  an  indemnity,  or  to  definitely  establish 
the  title  of  the  United  States  to  territory  conquered  in  war, 
the  United  States  has  the  right  to  decline  to  accept  the  ter- 
ritory except  under  such  conditions  as  it  is  willing  to  receive 
it ;  when  a  treaty,  therefore,  contains  a  stipulation  that  Con- 
gress shall  determine  the  civil  and  political  status  of  the  in- 
habitants of  territory  so  accepted,  it  must  be  admitted  that 
the  power  of  Congress  to  regulate,  fix  and  determine  that 
status  shall  not  be  limited  by  the  same  rules  as  limit  Con- 
gressional action  in  regard  to  matters  within  the  domain  of 
the  original  States,  or  those  which  have  been  admitted  to 
the  Union  on  an  equal  basis.  Unless  the  United  States  has 
the  right  to  so  qualify  its  acceptance  of  territory  it  might  be 
placed  in  the  position  of  being  obliged  to  give  full  political 
rights  to  a  population  entirely  diverse  in  nature,  in  some 
respects  undesirable,  and  in  any  event  unaccustomed  to  our 
methods  of  government. 

§  69.  States'  Rights  and  anti -expansion. — The  States' 
Eights  School  and  the  anti-expansionists  have  certain  ele- 
ments in  common,  although  they  by  no  means  constitute 
the  same  class.  The  States'  Rights  principles  which  were 
developed  to  the  highest  degree  m  the  Southern  States  were 
by  no  means  antagonistic  to  the  acquisition  of  territory,  for 
it  was  largely  due  to  the  Southern  influence  that  our  great- 
est acquisitions  were  made. 

In  so  far,  however,  as  limitations  are  placed  upon  the  gen- 
eral government,  the  States'  Eight  school  and  the  anti-expan- 
sion school  are  almost  identical ;  ever  since  the  organization 
of  our  government  there  has  been  a  faction,  not  necessarily 
limited  to  any  particular  part  of  the  country,  but  always  ap- 
pearing whenever  any  acquisition  was  under  consideration, 
which  has  opposed  the  extension  of  the  boundaries  of  the 
United  States.  Under  the  leadership  of  Senator  Pickering,  it 
tried  to  prevent  the  purchase  of  Louisiana ;  ^  the  arguments. 


§69. 

^Tlie  Louisiana  Purchase,  by 
Binger  Hermium,  Washiogton,  Gov- 
ernment Printing  Office,  1898.  See 
page  .37  for  views  of  Senator  Pick- 
ering of  Massachusetts,  Macy  of 
Connecticut,  Plumer  of  New  Hamp- 

132 


shire  and  Wliite  of  Delavrare, 
Representatives  Griswold  of  Con- 
necticut and  Griffin  of  Virginia, 
all  of  vphom  expressed  as  their 
opinion  that  the  annexation  of 
Louisiana  and  its  subsequent 
incorporation  into  the  Union    as 


CH.  II.]  SOVEREIGNTY  AND  TERRITORIAL  ACQUISITION.  §  69 

though  specious,  for  a  moment  frightened  Jefferson  to  the  ex- 
tent of  considering  the  necessity  of  a  constitutional  amend  ment 
specifically  conferring  the  power  to  purchase  territory  and  to 
govern  it;  he  rose  above  his  momentary  fears,  however,  and 
declared  that,  as  to  such  matters,  the  government  had,  and 
in  fact,  that  it  must  have,  the  power  to  act  for  the  sake  of 
the  existence  and  the  safety  of  the  Union.^  It  again  asserted 
itself  when  it  tried  to  convince  the  Supreme  Court  that  the 
government  had  no  power  to  acquire  Florida,  or  to  govern 
it  after  its  acquisition,  but  Chief  Justice  Marshall  suppressed 
it  with  one  of  those  opinions  which  left  no  uncertainty  as  to 
the  rulings  of  the  judicial  side  of  the  government.^  It  pro- 
tested against  the  annexation  of  Texas,  although  it  must  be 
said,  the  opposition  in  this  case  was  mainly  due  to  the  fear 
of  extension  of  slavery,  and  there  are  even  some  of  the  mem- 
bers of  that  party  to-day  who  contend  that  the  Lone  Star 
State  has  no  right  to  membership  in  the  Union,  although  they 
admit  that  it  may  be  too  late  to  raise  the  question  now,  and 
that  it  might  even  be  impolitic  to  raise  it  in  some  parts  of 
the  far  Southwest.  It  raised  a  great  shout  of  opposition  to 
the  purchase  of  Alaska,  and  Secretary  Seward  was  derided 
for  his  successful  negotiations  with  Russia  resulting  in  the 
acquisition  of  what  was  then  called  "  a  garden  of  snow  and 
ice,"  but  which  since  then  has  proved  of  such  inestimable 
value  that  a  single  group  of  islands  has  repaid  the  entire 
cost  of  the  whole  territory.'' 


States  were  unconstitutional  and 
could  only  be  accomplished  by  the 
consent  of  every  State  or  by  a  con- 
stitutional amendment. 

2  In  his  brief  in  the  Porto  Rico 
Tariff  cases  {Goetze  vs.  United 
State/))  submitted  to  the  Supreme 
Court  in  December,  1900,  Attorney 
General  Griggs  devotes  pages  31-40 
to  "  Jefferson's  doubts  as  to  the 
constitutionality  of  the  Louisiana 
Treaty."  He  declares  that  it  is  "  a 
common  error,  long  disseminated 
and  many  times  repeated,  to  assert 
that  .Jefferson  was  under  the  be- 
lief that  the  Uuited  States  had  no 


constitutional  power  to  acquire 
foreign  territory." 

2  •'  The  constitution  confers  ab- 
solutely on  tlie  government  of  the 
Union  the  power  of  making  wars 
and  making  treaties,  consequently 
the  government  possesses  the  power 
of  acquiring  territory  eitlier  by 
conquest  or  treaty."  American 
Ins.  Co.  vs.  Canter,  U.  S.  Sup.  Ct. 
1828,  1  Peters,  511,  p.  542,  MAit- 
SHALL,  Ch.  J. 

*  See  tlie  adverse  opinions  as  to 
the  value  of  Alaska  expressed  in 
Congress,  July  1,  1868,  by  Mr. 
Orange  Ferriss  of  New  York,  Mr. 

133 


§  70  TREATY->rAKrNO  I'OWEll  OF  THE  V.  S.  [CH.  IT. 

§  70.  Policy  of  expansion  and  acqnisitio!i  sustained  by 

courts  and  people. — This  voice  of  opposition,  as  loud  and 
as  futile  as  ever,  has  been  heard  again  within  the  last  three 
years ;  ante-bellum  doctrines  of  narrow  construction  have 
been  revived  by  those  who  have  called  themselves  at  one 
time  anti-expansionists,  and  at  another,  anti-imperialists.  It 
is  not  the  intention  of  the  author  to  discuss  the  political 
issues  raised  by  the  recent  transactions  of  the  National  gov- 
ernment ;  but  he  alludes  to  the  manner  in  which  the  people 
have  sustained  the  administration  as  ample  evidence  of  the 
fact  that  it  has  been  generally  acknowledged,  that  as  to  all 
matters  not  exclusively  within  the  jurisdiction  of  any  State, 
the  Central  Government  possesses  every  attribute  of  national- 
ity and  sovereignty  necessary  to  enable  it  to  act  for  the  general 
benefit  of  the  people  at  large ;  and  also  that  probably  during 
the  past  three  years  the  element  of  nationality  has  had  a 
greater  development  in  the  minds  of  our  people,  in  their  ca- 
pacit}^  as  "  Americans,"  than  it  has  had  since  the  pre-revolu- 
tionary  days  when  the  national  spirit  found  expression  in 
Patrick  Henry's  famous  utterance  :  "Am  I  less  a  Yirginian 
because  I  am  an  American? " 

Again  disavowing  any  intention  to  enter  upon  political 
discussion,  the  author  feels  that  it  must  also  be  acknowledged 
that  it  has  been  owing  to  the  wide  scope  of  the  treaty-maldng 
power,  and  the  manner  in  which  it  has  been  exercised,  by  the 
United  States  from  1782,  when  our  first  treaty  with  France 
gave  evidence  of  the  great  diplomatic  ability  of  Franklin 
and  his  colleagues,  to  the  present  time  when  the  treaty  con- 
cluded at  Paris  with  another  power  under  the  administra- 
tion of  Mr.  McKinley,  also  gave  evidence  of  the  skill  and 
ability  of  American  diplomats  and  established  the  fact,  that 
this  country  has  reached  a  preeminent  position  among  the 
nations  of  the  earth  ;  and  that  it  must  also  be  acknowledged 
that  through  the  treaty-making  power,  and  its  proper  and 
prudent  exercise  great  advantages  have  been  gained,  which 
have  inured  to  every  State,  and  to  citizens  of  every  State 
and  Territory. 

Waslibiirne  of  Wisconsin,  Messrs.  lated  on  pas:e  52  of  Binger  Her- 
Price  of  Iowa,  Benjamin  F.  Butler  mann's  Louisiana  Purchase,  re- 
of   Massachusetts    and  others  col-    ferred  to  supra,  note  1,  §  69. 

134 


CH.  IT.]  SOVERETGKTY  AKD  TERRITOEIAL  ACQUISITION.  §  71 

Surely  it  is  not  only  a  selfish  position,  but  one  also  un- 
founded in  fact  or  reason,  to  contend  that  as  the  number  of 
States  and  the  area  and  power  of  the  Union  increases,  each 
State  diminishes  in  relative  importance.  Which  one  of  the 
thirteen  original  States  would  to-day  exchange  its  position 
as  one  of  the  great  integral  factors  of  the  United  States  with 
its  present  proportions  and  power,  for  its  relative  position 
of  a  century  ago  ?  The  greater  the  Union — the  greater  the 
whole — the  greater  each  one  of  its  component  parts;  the 
United  States  never  has  increased,  and  never  will  increase, 
either  in  area,  power  or  in  any  other  manner,  except  for 
the  common  benefit  of  ever}^  State  and  of  every  citizen  in 
his  dual  capacity  as  a  citizen  of  his  own  State  and  of  the 
Union, 

If  to-day  we  hold  a  position  in  the  world  of  greater  strength 
and  influence  than  we  have  ever  held  before — and  who  can 
doubt  that  such  is  the  case — it  is  because  we  have  overcome 
at  last  all  petty  prejudices  and  local  jealousies,  and  liavo  fully 
recognized  and  realized  the  great  power  and  ability  which 
is  vested  in  our  Central  and  National  Government. 

§  71.  Territorial  Expansion  the  Cornerstone  of  Amer- 
ican prosperity.— The  broad  views  of  such  men  as  Marshall 
and  Story  during  the  great  constructive  period,  and  of  the 
men  who  have  folloAved  them  in  the  later  post-bellum  period, 
through  which  we  have  been,  and  are  now,  passing,  includ- 
ing such  eminent  jurists  as  Justices  Field,  Bradley,  Harlan 
and  Gray,  have  sustained  and  strengthened  the  hands  of  the 
National  Government,  and  have  made  the  enlargement  of 
our  territory  not  only  possible,  but  have  caused  it  to  result 
in  practical  benefits  for  every  State  and  also  for  the  citizens 
of  the  States  and  of  the  territory  acquired. 

In  fact,  the  history  of  the  United  States  has  demonstrated 
that  the  policy  of  expansion  and  acquisition  of  territory, 
based  as  it  is  upon  the  foundation  of  sovereignty  and  nation- 
ality of  the  Central  Government,  is  the  cornerstone  of  the 
great  structure  of  the  American  Union  which  has  been 
reared  thereon. 

The  cornerstone  must  rest  upon  a  sure  foundation  or  the 
structure  based  upon  it  will  collapse,  but  no  structure  built 
upon  the  cornerstone  of  our  policy  of  expansion  will  ever 

135 


§  71  TREATY-MAKING  POWER  OF  THE  U.  S.         [cil.  II. 

meet  tliat  fate,  for  the  stone  itself  is  securely  supported  upon 
the  broadest  and  strongest  foundation  of  thorough  national- 
ity and  complete  sovereignty,  indissolubly  cemented  with 
the  highest  degree  of  fearless  and  independent  loyalty  and 
patrif^tism,  both  national  and  federal. 
136 


CHAPTER  III. 


THE   NATIONALITY   AND    SOVEREIGNTY   OF   THE   UNITED    STATES 
AS    RECOGNIZED    BY    OTHER    SOVEREIGN   POWERS. 


Section 

72 — Subject,  so  far,  viewed  from 
internal  standpoints. 

73 — Subject  now  to  be  viewed 
from  external  standpoints. 

74 — Same  distinctions  exist  as  to 
all  federated  powers. 

75 — Kecent  Insular  cases  de- 
cisions only  involve 
these  questions  from  in- 
ternal standpoints. 

76 — Rule  from  external  stand- 
points based  on  interna- 
tional law. 

77 — Undivided  sovereignty  of 
governments  exercising 
jurisiliction  recognized  by 
other  powers. 

78 — Central  government  of  fed- 
erations the  only  one  rec- 
ognized by  foreign  powers. 

79 — Responsibilities  as  well  as 
benefits  result  from  this 
rule. 

80 — Author's  views  briefly  ex- 
pressed. 

81 — Instances  in  which  the  ques- 
tion has  arisen. 

82 — The  case  of  the  "  Caroline  "  ; 
Great  Britain's  position. 

83 — McLeod's  connection  with 
the  ^^ Caroline^'' ;  Lis  ar- 
rest by  New  York  Slate. 

84 — Great  Britain's  position  ex- 
pressed by  Mr.  Fox. 

85 — Mr.  Webster's  reply. 

86 — Final  disposition  of  tlie  case; 
McLeod's  acquittal. 

87 — Federal  statutes  passed  to 
meet  similar  cases. 


Section 

88 — Anti-Spanish  riots  in  New 
Orleans  of  1851. 

89 — Mr.  Webster's  position. 

90 — Indemnity  ultimately  paid  to 
sufferers. 

91— The  Mafia  Riots  in  New  Or- 
leans of  1891. 

92 — Complications  arising  from 
the  Mafia  Riots. 

93 — Action  of  the  State  courts  of 
Louisiana. 

94 — Mr.  Blaine's  position. 

95 — Final  result  of  the  Mafia 
cases. 

96 — The  "jl/on/j/o"  case;  claims 
by  tlie  UnitedStates against 
other  confederations;  fed- 
eral responsibility  for  acts 
of  state. 

97 — Result  of  the  arbitration. 

98 — Decision  of  the  Umpire. 

99 — Moore's  History  of  Interna- 
tional Arbitration. 
100 — Importance  of  tlie  "  Montijo''' 
decision  on  the  position  of 
the  United  States. 
101 — Different    meanings   of    the 
term  "  United  States  "  when 
considered   from  external 
and   internal    standpoints 
again  referred  to. 
102 — Official  definition  of  the  word 

"  country." 
103 — Status  of  territory  conquered 
by  military  forces  of  the 
United  States. 
104 — Fleming  v.  Page  ;  The  Tam- 
pico  Duty  case;  Chief  Jus- 
tice Taney's  opinion. 

137 


TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  HI. 


Section 

105 — The  position  reversed;  The 
(Jastiiie  case ;  War  of  1812 ; 
Justice  Story's  opiuion. 

106— Status  of  Cuba. 

107 — Status  of  Cuba  involved  in 
the  JSfeely  case;  extradi- 
tion. 


SliCTIOX 

108 — Uncertaiuty  as  to  status  of 
Cuba  from  internal  stand- 
point. 

109 — Xational  unity  as  to  all  for- 
eign powers;  a  principle 
enunciated  by  the  Con- 
gress of  the  Confederation 
and  continued  until  the 
present  time. 

§  72.  Subject,  so  far,  viewed  from  internal  standpoints. 

The  nationalit}^  and  sovereignt}'  of  the  United  States  has, 
up  to  this  point  been  discussed  from  the  standpoints  of  in- 
habitants of  the  United  States,  and  of  the  States  or  territories 
thereof.  Under  such  conditions,  the  extent  thereof  must  be 
determined  according  to  municipal  and  constitutional  la\Y,  as 
the  same  is  administered  in  this  country ;  the  sovereignty 
and  reserved  powers  of  the  various  States,  as  well  as  the 
constitutional  limitations  upon  the  Federal  Government,  must 
also  be  taken  into  consideration. 

§  73.  Subject  now  to  be  viewed  from  external  stand- 
points.— When,  however,  the  nationality  and  sovereignty  of 
the  United  States  is  considered  from  external  standpoints,  all 
of  those  internal  shades  of  difference  are  entirely  eliminated ; 
no  matter  how  extensive  the  powers  of  the  States  may  be  as 
to  internal  matters  they  have  but  little,  if  an}',  bearing  on 
foreign  complications  as  viewed  from  external  standpoints. 

§  74.  Same  distinctions  exist  as  to  all  federated  powers. 
— We  shall  see  in  the  succeeding  chapter  on  the  treat3''-raaking 
power  as  exercised  by  the  central  governments  of  other  con- 
federations, that  this  distinction  always  exists  as  to  the  in- 
ternal and  external  relations  of  federated  governments, 
although  the  extent  of  the  power  lodged  in  the  central  gov- 
ernments, or  reserved  in  the  constituent  states,  may  be  a  matter 
requiring  judicial  determination  as  to  internal  affairs.^  The 
general  rule  is  that  when  a  confederation  deals  with  foreign 
powers  it  necessarily  does  so  as  a  single  national  unit.  This 
rule  is  practicaUy  universal,  as  in  almost  all  federations  the 
central  government  has  absorbed  all  treaty -making  power ; 

§74. 

1  See  §§  111  et  seq.,  chapter  IV.,  post. 

138 


CH.  III.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS. 


76 


in  fact  all  the  functions  of  sovereignty,  so  far  as  they  affect 
the  relations  of  the  confederation  or  the  constituent  states 
with  foreign  powers,  must  be  exercised  by  the  central  gov- 
ernment, in  order  to  avoid  the  complications  which  would 
result  from  their  exercise  by  the  individual  states,  each 
necessarily  estabhshing  different  and  therefore  conflicting 
relations.^ 

§  75.  Receut  Insular  cases  decisions  only  involve  these 
questions  from  internal  standi)oints. — As  has  been  already 
stated,  the  recent  decisions  of  tlie  Supreme  Court^  involve  all 
the  internal  shades  of  difference  between  the  States  of  this 
union,  organized  territories,  such  as  Arizona  and  New  Mex- 
ico, unorganized  territories  such  as  Alaska  was  until  recently, 
and  those  territories  which  have  been  recently  acquired,  as 
well  as  that  of  the  Island  of  Cuba  which,  while  it  has  not 
been  acquired  by  the  United  States  is  now  occupied  by  its 
military  forces,  and  is  therefore  under  its  jurisdiction.^ 
While  the  Supreme  Court  has  to  some  extent  avoided  decid- 
ing all  the  points  which  were  raised  on  the  arguments,  the 
various  degrees  of  sovereignty  possessed  by  the  Central 
Government,  and  exercised  over  the  different  territories 
above  enumerated,  have  been  discussed  as  well  as  the  differ- 
ence in  the  status  of  the  various  territories  composing  the 
United  States  and  which  are  under  its  jurisdiction.  Those 
decisions,  however,  do  not  affect  the  external  relations  of 
the  United  States  with  foreign  powers,  because  as  to  them 
there  is  practically  very  little,  if  any,  difference  as  to  any 
territory  which  comes  under  the  jurisdiction  of  the  United 
States.^ 

§  76.  Rule  from  external  standpoints,  based  on  inter- 
national law. — This  condition  necessarily  results  from  the 


-  TIi;it  this  position  has  been 
taken  by  the  United  States  as  other 
confedcratioDS  is  demonstrated  by 
the  claim  in  the  Montijn  caxsg.  See 
references  at  length  to  tlie  proceed- 
ings in  §§  90-100  of  this  cliapter  and 
footnotes  thereto. 

§75. 

'  See   the  cases    collated    under 


§61,  ante,  and  references  to  pend- 
ing cases.     See  also  §  101,  post. 

2  See  reference  to  Neely  case  in- 
volving the  status  of  Cuba  and 
statutes  affecting  Cuba  in  §§  106- 
107,  post,  and  notes  thereunder. 

•^  See  extract  cited  in  §  78,  note  1 
pofit,  Fon.f/  Yue  Ting  vs.  United 
Slates,  U.  S,  Sup.  Ct.  1803,  149 
U.  S.  G98,  Gray,  J. 

139 


§  78  TREATY-I\LVKING  POWER  OF  THE  TJ.  S.        [oH.  III. 

admitted  rule  of  international  law  that  all  the  known  terri- 
tory on  the  face  of  the  earth  must  be  under  the  jurisdiction 
of  some  government,  which  not  only  acknowledges  that  it 
has  jurisdiction  thereover,  but  which  is  also  recognized  by 
the  other  powers  as  having,  and  exercising,  such  jurisdic- 
tion ;  this  rule  extends  not  only  to  the  main  territory",  but 
to  all  territory  which  is  in  any  way  directly  or  remotely 
under  the  jurisdiction  of  any  recognized  sovereignty. 

§  77.  Undivided  sovereignty  of  governments  exercising 
jurisdiction  recognized  by  other  powers. — It  is  a  well  set- 
tled principle  of  international  law  that  where  jurisdiction  is 
exercised  de  jure  or  de  facto  by  any  sovereign  power,  the 
right  of  such  power  to  negotiate,  and  enforce,  treaties  affect- 
ing such  territory  is  recognized  by,  and  binding  upon,  all 
other  powers  treating  with  it,  or  having  any  relations  with 
such  territory. 

The  Supreme  Court  has  decided  that  wherever  the  politi- 
cal side  of  the  United  States  Government  recognizes  the 
existence  of  a  government  and  negotiates  with  it,  the  courts 
must  uphold  and  enforce  the  treaty  so  made,  whether  it  be 
with  a  foreign  power  or  an  Indian  tribe;  and  that  it  is  not 
within  the  province  of  the  court  to  go  behind  the  execution 
of  the  treaty  and  to  determine  whether  it  is  or  is  not  made 
by  the  proper  authorities.^ 

§  78.  Central  government  of  federations  tlie  only  one 

recognized   by  foreign  powers This  recognition  of  the 

United  States  as  a  national  unit  by  all  other  powers  is  further 
strengthened  by  the  fact  that  the  States  themselves  are 
prohibited  by  the  Constitution  from  exercising  any  treaty- 


§  77. 

^  "  An  objection  was  taken,  on  the 
argument,  to  the  validity  of  the 
treaty,  on  the  ground  that  the 
Tonawanda  band  of  tlie  Seneca  In- 
dians were  not  represented  by  the 
chiefs  and  head  men  of  the  band  in 
the  negotiations  and  execution  of 
it.  But  the  answer  to  this  is,  that 
the  treaty,  after  being  executed 
and  ratified  by  the  proper  author- 
ities of  the  Government,  becomes 
the  supreme  law  of  the  land,  and  I 

140 


the  courts  can  no  more  go  behind 
it  for  the  purpose  of  annulling  its 
effect  and  operation,  than  they  can 
behind  an  act  of  Congress.  (1 
Cranch,  103;  6  Pet.  735;  10  How. 
442;  2  Pet.  307,  309,  314;  3  Story 
Const.  Law,  p.  695. )"  Fellows  vs. 
Blacksmith,  U.  S.  Sup.  Ct.  1856,  19 
Howard,  366,  p.  372,  Nelson,  J. 
See  also  Jones  vs.  United  States, 
U.  S.  Sup.  Ct.  1890,  137  U.  S.  202, 
Gray,  J. 


CH.  III.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.      §  80 

making  power,  or  from  entering  into  any  negotiations  or 
contracts  of  any  kind  witli  any  other  power,  either  State  or 
foreign,  as  every  element  of  negotiation,  as  well  as  of  treaty- 
making,  is  absolutely  confined  to  the  General  Government.^ 

§  79.  Rssponsibiiities  as  well  as  benefits  result  from 
this  rule.  —The  proposition  above  stated  carries  with  it  re- 
sponsibilities as  well  as  benefits.  The  author  does  not  in- 
tend in  this  volume  to  go  into  a  lengthy  discussion  as  to  the 
responsibility  of  the  United  States  government  for  acts  com- 
mitted in  violation  of  treaty  stipukitions  by  States,  or  by 
any  force  which  could,  or  should,  be  controlled  by  State  au- 
thorities. The  subject  is  not  only  intricate  and  complicated, 
but  is  also  exceedingly  delicate,  and  far-reaching  in  its  ap- 
plication; furthermore  as  the  Supreme  Court  has  never  au- 
thoritatively passed  upon  the  question  and  definitely  deter- 
mined either  the  extent  of  the  responsibility  of  the  Central 
Government  for  acts  of  the  constituent  governments,  or  the 
power  of  the  Federal  Government  to  enforce  compliance 
with  such  stipulations,  it  would  be  an  academic,  rather  than 
a  practical  discussion,  at  the  present  time. 

§  80.  Author's  views  briefly  expressed. — To  the  author, 
however,  it  seems  as  though  the  question  of  responsibility  on 
the  part  of  the  Federal  Government  for  violations  of  treaties 
by  the  action  or  neglect  of  the  States,  is  not  only  a  very  se- 
rious one,  but  one  which  sooner  or  later  will  give  rise  to  con- 
troversies between  this  government  and  foreign  powers  wliich 
will  eventually  be  the  subject  of  international  arbitration. 
So  long  as  the  States  are  prohibited  from  negotiating  with 
foreign  powers,  those  powers  will  naturally  insist  that  the 
United  States  shall  itself  assume  all  obligations  whicii  may 
arise  from  treaty  violations,  as  it  is  the  only  power  that  can 
deal  directly  or  indirectly  with  the  foreign  powers  whose  in- 
terests are  affected  ;  while,  however,  it  is  a  matter  of  complete 
indifference  to  any  foreign  power  having  a  grievance  against 
the  United  States,  whether  the  National  Government  has  or 


§  78. 

1 "  The  only  Government  of  this 
country,  which  otlicr  nations  recog- 
nize or  treat  witli,  is  tlie  Govern- 
ment of  the  Union;  and  the  only 


American  flacj  known  throughout 
the  world  is  the  flag  of  the  United 
States."  Forifi  Yue  Tinfi  vs.  United 
States,  U.  S.  Sup.  Ct.  1893,  149  U. 
S.  698,  p.  711,  Gray,  J. 

141 


§  82  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  III. 

has  not  the  internal  power  of  enforcing  compliance  with  the 
treaty  stipulation  by  the  separate  States,  or  of  compelling 
those  States  to  reimburse  it  for  loss  resulting  from  such  vio- 
lation, it  is  a  matter  of  great  importance  to  the  United  States, 
individually  and  collectively,  that  our  foreign  relations  and 
the  settlement  of  all  disputes  arising  under  treaties,  no  mat- 
ter what  may  be  the  occasion  thereof,  should  be  entirely 
controlled  by  the  National  Government,  in  order  that  no 
single  State  may  involve  the  entire  countr\^  in  international 
complications. 

§  81.  Instances  in  which  question  has  arisen. — The  ques- 
tion of  federal  responsibility  for  State  violations  of  treaties 
has  arisen  on  several  occasions.  A  definite  determination 
of  the  point,  however,  has  generally  been  avoided  by  diplo- 
matic settlements.  The  following  occurrences,  therefore, 
are  to  be  considered  more  as  historical  episodes,  than  as  legal 
precedents.  Four  instances  will  be  referred  to :  The  McLeod 
case  in  New  York  in  1811,  the  Spanish  riots  of  1851  in  New 
Orleans,  the  Mafia  riots  in  Louisiana  in  1893,  the  claim  of 
the  United  States  against  the  Republic  of  Colombia  in  the 
Monti  jo  case  in  1871. 

§  82.  The  case  of  tlie  "Caroline"  ;  Great  Britain's  po- 
sition.— In  1837  the  steamboat  Caroline  owned  by  an  Amer- 
ican citizen  was  said  to  be  engaged  in  tr-ansporting  recruits 
and  supplies  to  a  rendezvous  in  Naval  Island  in  Niagara 
River  for  cooperation  with  some  Canadian  insurgents.  It 
was  presumed  by  Canadian  authorities  that  the  boat  would 
be  the  means  of  transferring  an  expedition  to  the  Canadian 
shore;  accordingly  a  force  was  dispatched  which  followed 
the  boat  to  the  moorings  on  the  American  shore,  and  there 
attacked  the  crew,  killing  some  of  them  and  letting  the  boat 
drift  into  the  river,  the  current  of  which  carried  it  over 
Niagara  Fa,lls  resulting  in  its  complete  destruction. 

This  attack  was  made  the  subject  of  diplomatic  corre- 
spondence, the  United  States  claiming  that  its  territory  had 
been  violated,  and  the  Government  of  Great  Britain  main- 
taining that  it  was  justified  on  the  ground  of  necessity  and 
self-preservation. 

Later,  in  1812,  an  explanation  being  made  by  the  British 
142 


CH.  in.]    SOVEEEIGNTY  OF  U.  S.  AND  OTHER  POWERS.      §  83 


government,  the  United  States  accepted  it  as  satisfactory 
and  allowed  the  matter  to  drop.^ 

§83.  McLeod's  connection  with  the  "Caroline";  his 
arrest  by  New  York  State. — Some  time  after  the  destruction 
of  the  Caroline,  Alexander  McLeod,  a  subject  of  Great  Britain, 
was  arrested  by  the  State  of  New  York  on  the  charge  that 
he  had  been  engaged  in  the  Caroline  transaction  and  had 
committed  murder  within  the  jurisdiction  of  the  State  of 
New  York.  He  was  indicted,  tried  and  ultimately  acquitted. 
Pending  his  trial,  a  writ  of  habeas  corpus  was  api)lied  for 
on  the  ground  that  he  was  engaged  in  a  governmental  act 
and  was  not  therefore  amenable  to  the  local  jurisdiction  of 
the  State  Courts  of  New  Y^ork  or  even  those  of  the  Uni- 
ted States,  as  the  matter  was  in  course  of  adjustment  by 
diplomatic  departments  of  the  two  governments.  The  State 
court  dismissed  the  writ  and  remanded  McLeod  for  trial. 
Judge  Cowen  rendered  an  opinion,  in  which  he  asserted 
that  the  State  of  New  Y^ork  had  jurisdiction,  notwithstand- 
ing the  matter  was  the  subject  of  diplomatic  discussion  be- 
tween the  two  countries.     In  that  respect  he  said  :  ^ 

"But  it  is  said  of  the  case  at  bar,  here  is  more  than  a  mere 
approval  b}'  the  adverse  government,  that  an  explanation 
has  been  demanded  by  the  secretary  of  state ;  and  the  Brit- 
ish ambassador  has  insisted  on  McLeod's  release,  and  counsel 
claim  for  the  joint  diplomacy  of  the  United  States  and  Eng- 


§82. 

^The  most  complete  account  of 
the  Caroline  and  McLeod  affairs 
will  be  found  in  Wharton's  Inter- 
national Digest,  §  21,  vol.  I.,  and 
§  350,  vol.  III.  Citations  were  there 
given  of  all  public  documents,  cor- 
respondence and  decisions. 

§83. 

1  Judge  Cowen's  decision  includ- 
ing the  extract  here  quoted  from 
his  oijinion  has  been  sevex'ely  criti- 
cised. Wharton's  Digest  in  sec- 
tion 350  says:  "As  to  McLeod^s 
case,  Mr.  Webster,  in  his  speech  in 
the  Senate  on  the  treaty  of  Wash- 
ington (April  6,  1846)  said:  'Mc- 
Leod's case  went  on  in  the  court  of 


New  York,  and  I  was  utterly  sur- 
prised at  the  decision  of  that  Court 
on  the  habeas  corpus.  On  the  peril 
and  risk  of  my  professional  repu- 
tation, I  now  say  that  the  opinion 
of  the  court  of  New  York  in  that 
case  Is  not  a  respectable  opinion, 
either  on  account  of  the  result  at 
which  it  arrives,  or  the  reasoning  on 
which  it  iH'Oceeds.'  In  a  note  it  is 
added  that  the  opinion  had  been 
reviewed  by  Judge  Tallmadge,  of 
New  York  City,  and  that  of  this 
review  Chief  Justice  Spencer  said 
that  '  it  refutes  and  overthrows 
the  opinion  most  amply,'  and  that 
Chancellor  Kent  said,  '  It  is  con- 
clusive at  every  point. "' 

143 


§  83  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  Ul. 

land  some  such  effect  upon  the  power  of  this  court  as  a  cer- 
tioi-ari  from  us  would  have  upon  a  county  court  of  general 
sessions.  It  was  spoken  of  as  incompatible  with  a  judicial 
proceeding  against  McLeod  in  this  state;  as  a  suit  actually 
pending  between  two  nations,  wherein  the  action  of  the  gen- 
eral government  comes  in  collision  with,  and  supersedes 
our  own. 

"  To  such  an  objection  the  answer  is  quite  obvious.  Di- 
plomacy is  not  a  judicial,  but  executive  function;  and  the 
objection  would  come  with  the  same  force  whether  it  were 
urged  against  proceeding  in  a  court  of  this  state,  or  the 
United  States.  AVhether  an  actual  exertion  of  the  treaty- 
making  power,  b}'  the  President  and  Senate,  or  any  power 
delegated  to  congress  by  the  federal  constitution,  could  work 
the  consequences  contended  for,  we  are  not  called  u])on  to 
inquire :  whether  the  executive  of  the  nation,  (supposing 
the  case  to  belong  to  the  national  court,)  or  the  executive  of 
this  state  might  not  pardon  the  prisoner,  or  direct  a  nolle 
prosequi  to  be  entered,  are  considerations  with  which  we 
have  nothing  to  do. 

"The  executive  power  is  a  constitutional  department  in 
this,  as  in  every  well  organized  government,  entirely  distinct 
from  the  judicial.  And  that  would  be  so,  were  the  national 
government  blotted  out,  and  the  state  of  New  York  left  to 
take  its  place  as  an  independent  nation, 

"Not  only  are  our  constitutions  entirely  explicit  in  leaving 
the  trial  of  crimes  exclusively  in  the  hands  of  the  judiciary  : 
but  neither  in  the  nature  of  things,  nor  in  sound  policy,  can 
it  be  confided  to  the  executive  power.  That  can  never  act 
upon  the  individual  offendei- ;  but  only  by  requisition  on  the 
foreiirn  g-overnment;  and  in  the  instance  before  us,  it  has  no 
power  even  to  enquire  whether  it  be  true  that  McLeod  has 
personally  violated  the  criminal  laws  of  this  state.  It  has 
charge  of  the  question  in  its  national  aspect  onlv.  It  must 
rely  on  accidental  information,  and  may  place  the  whole 
question  on  diplomatic  considerations.  These  may  be  en- 
tirely wide  either  of  the  fact  or  the  law  as  it  stands  between 
this  state  and  the  accused.  The  whole  may  turn  on  ques- 
tions of  national  honor,  national  strength,  the  comparative 
value  of  national  i-ntercourse,  or  even  a  point  of  etiquette. 
144 


CH.  III.]    SOVEREIGNTY  OF  F.  S.  AND  OTHER  POWERS.      §  84 

"  Upon  the  principle  contended  for,  every  accusation  which 
has  been  drawn  in  question  by  the  executive  power  of  two 
nations,  can  be  adjusted  by  negotiation  or  war  only.  The 
individual  accused  must  go  free,  no  matter  to  what  extent 
his  case  may  have  been  misapprehended  by  either  power. 
No  matter  how  criminal  he  may  have  been,  if  his  country, 
though  acting  on  false  representations  of  the  case,  may  have 
been  led  to  approve  of  the  transaction  and  negotiate  concern- 
ing it,  the  demands  of  criminal  justice  are  at  an  end.^" 

§  8i.  Great  Britain's  position  expressed  by  Mr.  Fox. — 
While  the  trial  of  McLeod  was  pending  the  British  govern- 
ment made  a  demand  upon  the  State  Department  for  his 
release.  To  this  Mr.  Forsyth,  who  was  then  Secretary  of 
State,  replied  that  the  matter  was  within  the  jurisdiction 
of  the  State  of  New  York,  and  that  the  judicial  action  of 
that  State,  under  all  the  circumstances,  was  proper. 

Mr.  Fox,  the  then  accredited  minister  of  Great  Britain  to 
Washington,  was  not  contented  with  this,  and  on  March  12, 
1841,  before  the  trial  of  McLeod  and  after  Mr.  AVebster  had 
become  Secretary  of  State,  he  delivered  a  further  protest 
against  the  continuance  of  the  trial  in  which  he  expressed 
the  views  of  his  government  in  regard  to  the  national  re- 
sponsibility for  all  acts  in  violation  of  treaty  or  national 
rights  committed  by  any  of  the  State  governments.  In  the 
course  of  his  letter  he  said : 

"  Her  Majesty's  government  cannot  believe  that  the  gov- 
ernment of  the  United  States,  can  really  intend  to  set  an 
example  so  fraught  with  evil  to  the  community  of  nations, 
and  the  direct  tendency  of  which  must  be  to  bring  back  into 
the  practice  of  modern  war,  atrocities  which  civilization  and 
Christianity  have  long  since  banished. 

"  Neither  can  her  Majesty's  government  admit  for  a  mo- 
ment the  validity  of  the  doctrine  advanced  by  Mr.  Forsyth, 
that  the  federal  government  of  the  United  States  has  no 
power  to  interfere  in  the  matter  in  question,  and  that  the 
decision  thereof  must  rest  solely  and  entirely  with  the  state 
of  New  York. 

"  With  the  particulars  of  the  internal  compact,  which  may 

^People  vs.  McLeod,   N.    Y.  Su-  I  pp.  598,  599,  Cowen,  J. 
preme  Ct.  1841,    25  Wendell,  483,  I 

10  145 


§  85  TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  IH. 

exist  betu'een  the  several  states  that  compose  the  Union, 
foreign  powers  have  nothing  to  do:  the  relations  of  foreign 
powers  are  with  the  aggregate  union ;  that  union  is  to  them 
represented  b\^  the  federal  government ;  and  of  that  union  the 
federal  government  is  to  them  the  only  organ.  Therefore, 
when  a  foreign  power  has  redress  to  demand  for  a  wrong 
done  to  it  by  any  state  of  the  union,  it  is  to  the  federal  gov- 
ernment, and  not  to  the  separate  state,  that  such  power  must 
look  for  redress  for  that  wrong.  And  such  foreign  power 
cannot  admit  the  plea  that  the  separate  state  is  an  independ- 
ent body,  over  which  the  federal  government  has  no  control. 
It  is  obvious  that  such  a  doctrine,  if  admitted,  would  at  once 
go  to  a  dissolution  of  the  union,  as  far  as  its  relations  with  for- 
eign powers  are  concerned ;  and  that  foreign  powers  in  such 
case,  instead  of  accrediting  diplomatic  agents  to  the  federal 
government,  w^ould  send  such  agents  not  to  that  government, 
but  to  the  government  of  each  separate  state ;  and  would 
make  their  relations  of  peace  and  war  with  each  state,  depend 
upon  the  result  of  their  separate  intercourse  with  each  state, 
without  reference  to  the  relations  they  might  have  with  the 
rest. 

"  Her  Majestj^'s  government  apprehend,  that  the  above  is 
not  the  conclusion  at  which  the  government  of  the  United 
States  intend  to  arrive ;  yet  such  is  the  conclusion  to  which 
the  arguments  that  have  been  advanced  by  Mr,  Forsyth 
necessarily  lead. 

"  But,  be  that  as  it  may,  her  Majesty's  government  formally 
demand,  upon  the  grounds  already'  stated,  the  immediate 
release  of  Mr.  McLeod ;  and  her  Majesty's  government  entreat 
the  President  of  the  United  States,  to  take  into  his  most  delib- 
erate consideration  the  serious  nature  of  the  consequences 
w^hich  must  ensue  from  a  rejection  of  this  demand."^ 

§  85.  Mr.  Webster's  Reply. — Mr.  Webster's  reply  rather 
evades  the  subject  of  federal  i-esponsibility  for  acts  of  states ; 
in  the  course  of  it,  however,  he  says : 

"  Soon  after  the  date  of  Mr.  Fox's  note,  an  instruction  was 


§84. 

1  Wharton's  Digest,  §  21,  for  cita- 
tions.    See  also  25   Wendell,  491, 
146 


p.  508,  where  correspondence  in  full 
is  printed  as  a  note. 


CH.  in.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.      §  85 

given  to  the  attorney  general  of  the  United  States,  from  this 
department,  by  direction  of  the  President,  which  fully  sets 
forth  the  opinions  of  this  government  on  the  subject  of  Mc- 
Leod's  imprisonment,  a  copy  of  which  instruction  the  under- 
sio:ned  has  the  honor  herewith  to  enclose. 

^ "  The  indictment  against  McLeod  is  pending  in  a  state 
court;  but  his  rights,  whatever  they  may  be,  are  no  less 
safe,  it  is  to  be  presumed,  than  if  he  were  holden  to  answer 
in  one  of  the  courts  of  this  government. 

"  He  demands  immunity  from  personal  responsibility  by 
virtue  of  the  law  of  nations,  and  that  law  in  civilized  states 
is  to  be  respected  in  all  courts.  None  is  either  so  high  or 
so  low  as  to  escape  from  its  authority,  in  cases  to  which  its 
rules  and  principles  apply. 

"  This  department  has  been  regularly  informed  by  his 
excellency  the  Governor  of  the  state  of  New  York,  that  the 
chief  justice  of  that  state  was  assigned  to  preside  at  the 
hearing  and  trial  of  McLeod's  case,  but  that,  owing  to  some 
error  or  mistake  in  the  process  of  summoning  the  jury,  the 
hearing  was  necessarily  deferred.  The  President  regrets 
this  occurrence,  as  he  has  a  desire  for  a  speedy  disposition  of 
the  subject.  The  counsel  for  McLeod  have  requested  au- 
thentic evidence  of  the  avowal  by  the  British  government, 
of  the  attack  on  and  destruction  of  the  '  Caroline,'  as  acts 
done  under  its  authority,  and  such  evidence  will  be  fur- 
nished to  them  by  this  department. 

"  It  is  understood  that  the  indictment  has  been  removed 
into  the  supreme  court  of  the  state,  by  the  proper  proceed- 
ings for  that  purpose,  and  that  it  is  now  competent  for  Mc- 
Leod, by  the  ordinary  process  of  habeas  corpus,  to  bring  his 
case  for  hearing  before  that  tribunal. 

"  The  undersigned  hardly  needs  to  assure  Mr.  Fox,  that 
a  tribunal  so  eminently  distinguished  for  ability  and  learn- 
ing as  the  supreme  court  of  the  state  of  New  York,  may  be 
safely  relied  upon  for  the  just  and  impartial  administration 
of  the  law  in  this  as  well  as  in  other  cases;  and  the  under- 
signed repeats  the  expression  of  the  desire  of  this  govern- 
ment that  no  delay  may  be  suffered  to  take  place  in  these 
proceedings   which   can   be   avoided.     Of  this  desire,  Mr. 

147 


§87 


TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IH. 


Fox  will  see    evidence  in  the  instructions  above  referred 
to."  1 
§  86.  Final  disposition  of  the  case  ;  McLeod's  acquittal. 

— After  McLeod  hud  been  remanded  the  trial  proceeded  and 
resulted  in  a  verdict  of  acquittal,  after  which  he  was  released. 
While  this  prevented  all  further  complications,  it  left  unde- 
cided the  important  questions  as  to  whether  or  not  the  Fed- 
eral Government  could  have  interfered  and  taken  McLeod 
from  the  jurisdiction  of  the  State  courts,  and  either  tried  him 
under  some  federal  statute,  or  released  him  in  accordance 
with  diplomatic  arrangements  made  between  the  two  coun- 
tries, 

§  87.  Federal  statutes  passed  to  meet  similar  cases. — At 
that  time  there  were  no  federal  statutes  under  which  the 
United  States  could  prevent  the  trial,  in  State  courts,  of 
McLeod  or  other  persons  similarly  indicted ;  in  order  that  the 
recurrence  of  such  controversies  might  be  prevented  there- 
after, and  that  the  action  of  a  single  State  might  not  jeop- 
ardize the  foreign  relations  of  the  entire  countr}^  the  act  of 
August  29,  1842,^  was  passed  by  Congress  under  which  fed- 


§85. 

1 1  Wharton's  Digest,  §  21,  for  ci- 
tation. See  also,  25  Wendell,  491, 
512,  513,  where  correspondence  is 
printed  in  full  as  a  note. 

§87. 

i"Sec.  752.  The  several  justices 
and  judges  of  the  said  [Federal] 
Courts,  within  their  respective  ju- 
risdictions, shall  have  power  to 
grant  writs  of  habeas  corpus  for 
the  purpose  of  an  inquiry  into  the 
cause  of  restraint  of  liberty. 

"  Sec.  75.3.  The  writ  of  habeas 
corpus  shall  in  no  case  extend  to  a 
prisoner  in  jail,  unless  when  he  is 
in  custody  under  or  by  color  of  the 
authority  of  the  United  States,  or 
is  committed  for  trial  before  some 
court  thereof;  or  is  in  custody  for 
an  act  done  or  omitted  in  pursu- 
ance of  a  law  of  the  United  States, 
or  of  an  order,  process,  or  decree 
of  a  court  or  judge  thereof;  or  is 

148 


in  custody  in  violation  of  the  Con- 
stitution or  of  a  law  or  treaty  of 
the  United  States;  or,  being  a  sub- 
ject or  citizen  of  a  foreign  state, 
and  domiciled  therein,  is  in  custody 
for  an  act  done  Of  omitted  under 
any  alleged  right,  title,  authority, 
privilege,  protection,  or  exemp- 
tion claimed  under  the  commission, 
or  order,  or  sanction  of  any  foreign 
state,  or  under  color  thereof,  the 
validity  and  effect  whereof  depend 
upon  the  law  of  nations;  or  unless 
it  is  necessary  to  bring  the  prisoner 
into  court  to  testify. 

"  Sec.  754.  Application  for  writ 
of  habeas  corpus  shall  be  made  to 
the  court,  or  justice,  or  judge  au- 
thorized to  issue  the  same,  by  com- 
plaint in  writing,  signed  by  the 
person  for  whose  relief  it  is  in- 
tended, setting  forth  the  facts  con- 
cerning the  detention  of  the  party 
restrained,  in  whose  custody  he  is 


CH.  in.]    SOVEREIGNTY  OF  tJ.  S.  AND  OTHER  POWERS.       §  88 

eral  courts  have  jurisdiction  of  such  matters.  That  statute 
has  since  been  incorporated  in  sections  752-4  of  the  Kevised 
Statutes  of  the  United  States.  The  United  States  courts  are 
thus  enabled  to  investigate  the  cause  of  detention  of  any  per- 
son held  under  a  State  indictment  for  otfences  similar  to  those 
with  which  McLeod  was  charged,  and  which  are  really  not 
so  much  violations  of  the  sovereignty  of  any  particular  State 
as  they  are  of  the  sovereignty  of  the  United  States,  The  right 
of  the  United  States  to  intervene  in  such  cases  is  apparent 
when  it  is  considered  that  if  any  international  complications 
had  arisen  owing  to  the  McLeod  incident,  they  would  have 
affected  not  only  the  State  of  New  York,  but  the  entire 
country.  Plad  Great  Britain  seen  fit  to  resort  to  arms  to 
redress  the  injuries  which  she  claimed  her  citizen  has  sus- 
tained, she  would  not  necessarily  have  limited  her  attacks  to 
the  northern  frontier  of  New  York  State,  but  could  have 
commenced  hostilities  wherever  she  saw  fit,  at  any  point  on 
land  or  sea ;  nor  would  the  State  of  New  York  have  been 
able,  nor  would  she  have  been  permitted,  to  meet  these  attacks 
solely  with  her  own  State  militia.  The  entire  naval  and  mili- 
tary forces  of  the  United  States,  as  a  nation,  would  neces- 
sarily have  been  called  into  action  in  order  to  repel  the  in- 
vasion by,  or  the  hostile  attacks  of,  a  foreign  State,  on  any 
part  of  the  domain  of  the  United  States,  State  or  national. 

§  88.  Anti-Spanish  Riots  in  New  Orleans  of  1851 In 

August,  1851,  a  mob  in  New  Orleans  demolished  the  build- 
ing in  which  the  office  of  the  Spanish  consul  was  located. 
At  the  same  time  attacks  were  made  upon  cotfee  houses  and 
cigar  shops  kept  by  Spanish  subjects.  American  citizens 
were  involved  in  the  loss  which,  in  the  aggregate,  was  large. 
The  supposed  cause  of  the  mob  was  the  intelligence  of  the 
execution  of  50  young  Americans  in  Havana  and  the  banish- 
ment to  Spanish  mines  of  nearly  200  citizens  of  the  United 
States.  The  victims  were  all  members  of  the  abortive  Lopez 
expedition  against  Cuba.     In  consequence  of  these  depre- 


detained,  and  by  virtue  of  wliat 
claim  or  authority,  if  knowu.  The 
facts  set  forth  in  the  complaint 
shall  be  verified  by  the  oath  of  the 
person  making  the  application." 


5  U.  S.  Stat,  at  Large,  p.  539;  29 
Aug.  1842,  c.  257,  s.  1;  see  also 
Wharton's  Int.  Law  Dig.  vol.  1, 
section  21. 

149 


TREATY-MAKESTG  POWER  OF  THE  U.  S. 


[CH. 


ni. 


dations  of  the  mob  upon  the  property  of  the  Spanish  consul, 
as  well  as  against  Spanish  subjects,  the  Minister  of  Spain 
demanded  indeinnitication  for  all  the  losses,  both  official  and 
personal.  Mr.  Webster  admitted  that  the  Spanish  consul 
was  entitled  to  indemnity,  and  made  a  proposition  as  to  how 
the  indignity  offered  to  the  representative  of  the  Spanish 
government  should  be  accorded ;  but  when  pressed  by  the 
Spanish  Minister  to  afford  an  indemnity  to  Spanish  subjects 
who  were  injured  by  the  mob,  in  common  with  American 
citizens,  Mr.  Webster  declined  to  accede  to  the  demand,  and 
gave  as  his  reasons  that  as  many  American  citizens  had  suf- 
fered equal  loss,  the  private  individuals,  Spanish  subjects, 
coming  voluntarily  to  reside  in  the  United  States  had  no 
cause  of  complaint,  for  they  were  protected  by  the  same  laws 
and  the  same  administration  of  law  as  native  born  citizens  of 
this  country.^ 


§88. 

'  The  history  of  the  anti-Spanish 
riots  in  New  Orleans  will  be  found 
in  the  Foreign  Kelations  Reports 
for  1851-2,  and  rehearsed  in  the 
Eeports  for  1891,  during  the  Mafia 
Riot  cori'espondence.  The  follow- 
ing is  an  extract  from  a  note  sent 
by  Daniel  Webster,  Secretary  of 
State,  to  Mr.  Calderon,  the  Spanish 
Minister,  November  13,  1851: 

"The  assembling  of  mobs  hap- 
pens in  all  countries ;  popular  vio- 
lences occasionally  break  out  every- 
where, setting  law  at  defiance, 
trampling  on  the  rights  of  citizens 
and  private  men;  and  sometimes 
on  those  of  public  officers,  and  the 
agents  of  foreign  governments, 
especially  entitled  to  protection. 
In  these  cases  the  public  faith  and 
national  honor  require,  not  only 
that  such  outrages  should  be  dis- 
avowed, but  also  that  the  perpetra- 
tors of  them  should  be  punished, 
whenever  it  is  possible  to  bring 
them  to  justice;  and  further,  that 
full  satisfaction  should  be  made  in 
cases  in  which  a  duty  to  that  effect 

150 


rests  with  the  government,  accord- 
ing to  the  general  principles  of  law, 
public  faith,  and  the  obligation  of 
treaties. 

"  Mr.  Calderon  thinks  that  the 
enormity  of  this  act  of  popular 
violence  is  heightened  by  its  insult 
to  the  flag  of  Spain.  The  Govern- 
ment of  the  United  States  would 
earnestly  deprecate  any  indignity 
offered  in  this  country,  in  time  of 
peace,  to  the  flag  of  a  nation  so  an- 
cient, so  i-espectable,  so  renowned 
as  Spain.  No  wonder  that  Mr. 
Calderon  should  be  proud,  and  that 
all  patriotic  Spaniards  of  this  gen- 
eration should  be  proud  of  the 
Castilian  ensign  which  in  times 
past  has  been  reared  so  high  and 
waved  so  often  over  fields  of  ac- 
knowledged and  distinguished 
valor;  and  which  has  floated,  also, 
without  stain,  on  all  seas,  and  espe- 
cially, in  early  days,  on  those  seas 
which  washed  the  shores  of  all  the 
Indies. 

"Mr.  Calderon  may  be  assured 
that  the  government  of  the  United 
States  does  not  and  cannot  desire 


OH.  III.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS. 


89 


§  89.  Mr.  Webster's  position. — The  above  section  is  quoted 
almost  verbatim  from  a  resume  of  the  occurrences  of  1851, 


to  witness  the  desecration  or  deg- 
redation  of  the  national  banner  of 
his  country.  It  appears,  liowever, 
tliat  in  point  of  fact  no  flag  was 
actually  flying  or  publicly  exhib- 
ited when  the  outrage  took  place; 
but  this  can  make  no  difference  in 
regard  to  the  real  nature  of  the 
offence  or  its  enormity.  The  per- 
sons composing  the  mob  knew  that 
they  were  offering  insult  and  injury 
to  an  officer  of  Her  Catholic  Majesty, 
residing  in  the  United  States  under 
the  sanction  of  laws  and  treaties; 
and,  therefore,  their  conduct  ad- 
mits of  no  justification.  Neverthe- 
less, Mr.  Calderon  and  his  gov- 
ernment are  awai'e  that  recent 
intelligence  had  been  received  from 
Havana,  not  a  little  calculated  to 
excite  popular  feeling  in  a  great 
city,  and  to  lead  to  popular  ex- 
cesses. If  this  be  no  justification, 
as  it  certainly  is  none,  it  may  still 
be  taken  into  view,  and  regarded 
as  showing  that  the  outrage,  how- 
ever flagrant,  was  committed  in  the 
heat  of  blood,  and  not  in  pursuance 
of  any  predetermined  plan  or  pur- 
pose of  injury  or  insult. 

"  The  people  of  the  United  States 
are  accustomed,  in  all  cases  of  al- 
leged crime,  to  slow  and  cautious 
investigation  and  deliberate  trial 
before  sentence  of  condemnation  is 
passed,  however  apparent  or  how- 
ever enormous  the  imputed  offence 
may  be.  No  wonder,  therefore, 
that  the  information  of  the  execu- 
tion, so  soon  after  their  arrest,  of 
the  persons  above  referred  to — 
most  of  whom  were  known  in  New 
Orleans,  and  who  were  taken  not 
in  Cuba,  but  at  sea,  endeavoring  to 
escape  from  the  island— should 
have   produced  a  belief,   however 


erroneous,  that  they  had  been  exe- 
cuted without  any  trial  whatever, 
caused  an  excitement  in  the  city, 
the  outbreak  of  which  the  public 
authorities  were  unable  for  the 
moment  to  prevent  or  control. 

"Mr.  Calderon  expresses  the 
opinion  that  not  only  ought  indem- 
nification to  be  made  to  Mr.  La- 
borde,  her  Catholic  Majesty's  con- 
sul, for  injury  and  loss  of  property, 
but  that  reparation  is  due  also  from 
the  government  of  the  United  States 
to  those  Spaniards  residing  in  New 
Orleans  whose  property  was  injured 
or  destroyed  by  the  mob;  and  in- 
timates that  such  reparation  had 
been  verbally  promised  to  him. 
The  undersigned  sincerely  regrets 
that  any  misapprehension  should 
have  grown  up  out  of  any  conversa- 
tion between  Mr.  Calderon  and  offi- 
cers of  this  government  on  this 
unfortunate  and  unpleasant  affair; 
but  while  this  government  has  man- 
ifested a  willingness  and  determin- 
ation to  perform  every  duty  which 
one  friendly  nation  has  a  right  to 
expect  from  another,  in  cases  of 
this  kind,  it  supposes  that  the 
rights  of  the  Spanish  consul,  a  pub- 
lic officer  residing  here  under  the 
protection  of  the  United  States 
Government,  are  quite  different 
from  those  of  the  Spanish  subjects 
wlu)  have  come  into  the  country  to 
mingle  with  our  own  citizens,  and 
here  to  pursue  their  private  busi- 
ness and  objects.  The  former  mny 
claim  special  indemnity;  the  latter 
are  entitled  to  such  protecticm  as 
is  afforded  to  our  own  citizens. 

"While,  therefore,  the  losses  of 
individuals,  private  Spanish  sub- 
jects, are  greatly  tt)  be  regretted, 
yet    it    is    understood  that  many 

151 


§  89 


TKEATY-MAKING  POWER  OF  THE  U.  S.        [CH.  III. 


contained  in  a  note  written  in  1S91  by  Mr.  Blaine  to  the 
]\Iarquis  Imperiali,  in  regard  to  the  Matia  riots,  wliich  will  be 
referred  to  at  a  subsequent  point  in  tliis  chapter.^ 

Mr.  Webster  in  1851  took  the  position  that  the  widows 
and  children  of  the  United  States  citizens  who  had  lost  their 
lives  by  niob  violence  could  sue  the  leaders  and  members  of 
the  mob  only  in  the  courts  of  the  State  of  Louisiana,  v/hile 
the  widows  and  children  of  Spanish  subjects  had  the  right  to 
sue  each  member  of  the  mob,  not  only  in  the  State  courts, 
but  also  before  the  federal  tribunals  for  the  District  of  Louis- 
iana ;  there  was  an  attempt  made  to  disclaim  all  responsibility 


American  citizens  suffered  equal 
losses  from  the  same  cause.  And 
these  private  individuals,  subjects 
of  her  Catholic  Majesty,  coming 
voluntarily  to  reside  in  the  United 
States,  have  certainly  no  cause  of 
complaint,  if  they  are  protected  by 
the  same  law  and  the  same  admin- 
istration of  law  as  native-born  citi- 
zens of  this  country.  They  have, 
in  fact,  some  advantages  over  citi- 
zens of  the  State  in  which  they 
happen  to  be,  inasmuch  as  they 
are  enabled,  until  they  become  cit- 
izens themselves,  to  prosecute  for 
any  injuries  done  to  their  persons 
or  property  in  the  courts  of  the 
United  States,  or  the  State  courts, 
at  their  election.  The  President  is 
of  opinion,  as  already  stated,  that 
for  obvious  reasons  the  case  of  the 
consul  is  different,  and  that  the 
government  of  the  United  States 
should  provide  for  Mr.  Laborde  a 
just  indemnity;  and  a  recommen- 
dation to  that  effect  will  be  laid  be- 
fore Congress  at  an  early  period  of 
its  approaching  session.  This  is 
all  which  it  is  in  his  power  to  do. 
The  case  may  be  a  new  one;  but 
the  President,  being  of  opinion 
that  Mr.  Laborde  ought  to  be  in- 
demnified, has  not  thought  it 
necessary  to  search  for  pi-ecedents. 

152 


"In  conclusion,  the  undersigned 
has  to  say,  that  if  Mr.  Laborde 
shall  return  to  his  post,  or  any 
other  consul  for  New  Orleans  shall 
be  appointed  by  her  Catholic  Ma- 
jesty's Government,  the  officers  of 
this  government,  resident  in  that 
city,  will  be  instructed  to  receive 
and  treat  him  with  courtesy,  and 
with  a  national  salute  to  the  flag 
of  his  ship,  if  he  shall  arrive  in  a 
Spanish  vessel,  as  a  demonstration 
of  respect,  such  as  may  signify  to 
him,  and  to  his  government,  the 
sense  entertained  by  the  govern- 
ment of  the  United  States  of  the 
gross  injustice  done  his  predecessor 
by  a  lawless  mob,  as  well  as  the 
indignity  and  insult  offered  by  it  to 
a  foreign  State,  witli  which  the 
United  States  are,  and  wish  ever 
to  remain,  on  terms  of  the  most 
respectful  and  pacific  intercourse. 

"  The  undersigned  avails  himself 
of  this  occasion  to  offer  to  Mr.  Cal- 
deron  renewed  assurances  of  his 
most  distinguished  consideration." 
(Foreign  Relations  of  the  U.  S., 
1851-52,  pp.  G3-6.J.)  See  also  2 
Wharton's  Digest,  §  226. 

§89. 

1  See  §  94,  i^ost,  and  extracts  from 
Secretary  Blaine's  note  in  the  foot- 
note to  that  section. 


CM.  Ill,]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.      §  91 

on  the  part  of  the  federal  government  for  the  violence  done 
to  Spanish  citizens.- 
§  90.  Indemnity   ultimately   paid   to   sufferers. — Two 

years  later,  however,  in  recognition  of  the  magnanimous 
conduct  of  the  Queen  of  Spain  in  pardoning  American  citi- 
zens who  had  unjustifiably  invaded  the  Island  of  Cuba,  a 
joint  resolution  was  adopted  by  Congress  and  approved  by 
President  Fillmore  March  3, 1853,  indemnifying  the  Spanish 
Consul  and  other  Spanish  subjects  for  the  losses  sustained  in 
the  New  Orleans  mob  of  1851.  The  State  department,  how- 
ever, are  on  record  as  stating  in  the  letter  above  referred 
to  that  the  considerations  upon  which  this  resolution  was 
passed  were  held  not  to  contravene  the  original  position  of 
Mr.  Webster,  which  was  shared  also  by  President  Fillmore.' 

§  91.  The  Mafia  Riots  in  New  Orleans  of  1891.— On 
March  14,  1891,  a  number  of  Italians  then  confined  in  the 
jail  in  New  Orleans,  were  forcibly  taken  from  the  jail  and 
hanged,  by  the  action  of  a  large  number  of  citizens. 

The  episode  has  passed  into  history  under  the  title  of  the 
Mafia  Riots.  Many  of  the  respectable  citizens  of  New  Or- 
leans, however,  claim  that  it  was  not  in  the  nature  of  a 
riotous  outbreak,  but  a  mere  enforcement  of  justice  in  a 
summary  manner  after  the  local  courts  had  failed  to  admin- 
ister it  in  pursuance  of  law  upon  criminals  who  had,  under  a 
regular  organization,  committed  many  atrocious  crimes,  and 
that  the  method  adopted  was  the  only  practical  way  of  put- 
ting a  complete  stop  to  the  outrages  which  they  claimed 
had  been  committed  through  the  "  Mafia." 

The  Marquis  Rudini  immediataly  cabled  from  Rome  to 
Baron  Fava,  the  Italian  Minister  to  the  United  States,  "to 
denounce  immediately  to  the  United  States  government  the 
atrocious  deed  of  New  Orleans,  requesting  immediate  and 
energetic  steps  to  repress  the  riot,  to  protect  the  Italian  col- 
ony endangered  thereby,  and  also  to  severely  punish  the 
guilty." 

Baron  Fava  made  a  formal  demand  at  once  upon  Mr. 
Blaine,  Avho  was  then  Secretary  of  State.  A  lengthy  cor- 
respondence ensued  between  Governor  Nicholls  of  Louisiana 

2  See  §  88  ante.  l      i  U.  S.  Foreign  Relations  Reports 

§  90.  1 1891,  p.  684. 

153 


§  93  TREAT Y-IMAKING  POWER  OF  THE  U.  S.        [CH.  Ul. 

and  Mr.  Blaine  in  regard  to  the  occurrences,  and  between  Mr. 
Blaine  and  Baron  Fava  as  to  the  liability  of  the  United  States. 

§  02.  Complicatious  arising  from  the  Malta  Riots. — This 
correspondence  is  ver}'  lengthy,  comprising  over  fift}^  pages 
of  the  Foreign  Relations  Reports  of  1891.  On  April  2, 1S91, 
the  Italian  government  repeated  its  demand  for  prompt  set- 
tlement of  its  claims,  and  demanded  indemnity  for  the  fami- 
lies of  the  men  who  had  been  killed. 

The  correspondence  shows  that,  at  times,  the  situation 
became  quite  acute  and  various  questions  other  than  the  lia- 
bility of  the  Federal  Government  were  involved,  such  as  the 
conduct  of  the  Italians,  and  whether  or  not  they  had  retained 
their  citizenship  of  Italy  and  were  entitled  to  the  protection 
of  the  Italian  government.  So  strained  did  the  relations  be- 
tv/een  the  Governments  of  the  United  States  and  Italy  be- 
come that  the  Italian  Minister  withdrew  from  Washington 
and  diplomatic  relations  were  for  a  time  practically  sus- 
pended. 

We  are,  however,  interested  onlv  in  the  single  point  as  to 
the  position  taken  in  the  correspondence  by  the  tv/o  govern- 
ments as  to  the  liability  of  the  Government  of  the  United 
States,  for  the  failure  of  the  State  government  of  Louisiana, 
to  afford  to  Italian  citizens  the  protection  to  life  and  prop- 
erty which  is  reciprocally  assured  to  the  citizens  of  the  two 
countries  under  the  then  existing  treaty  stipulations. 

§  93.  Action  of  the  State  courts  of  Louisiana. — A  grand 
jury,  consisting  of  many  prominent  citizens  uf  Xew  Orleans, 
found  that  the  acquittals  of  the  Italians  by  trial  juries  were 
improper,  and  that  the  uprising  of  citizens  and  the  resulting 
summary  executions,  or  lynchings,  were  the  result  of  the  dan- 
gerous form  which  the  "  Mafia  "  had  assumed ;  and  that  the 
respectable  element  of  New  Orleans  feared  that  unless  some 
such  prompt  and  energetic  action  was  taken  it  would  be  im- 
possible to  suppress  the  Italian  secret  societies  and  prevent 
the  recurrence  of  similar  atrocities,  which  had  increased  to  a 
tremendous  extent  owing  to  the  practical  immunity  afforded 
by  the  constant  acquittal  of  persons  brought  to  trial.* 


§93. 

iThe  report  of  the  Grand  Jury 
appears  at  length  at  page  714  et  seq. 

154 


of  the  Foreign  Relations  Reports  for 
1891. 


CH.  in.]    SOVEREIGNTY  OF  IT.  S.  AND  OTHER  POWERS.      §  93 


None  of  the  participants  in  the  "•  summary  execution  "  of 
the  Italians  were  indicted  or  tried.  The  Italian  govern- 
ment protested  against  the  non-punishment  of  the  parties 
whom  it  claimed  had  participated  in  the  killing  of  Italian 
citizens  and  the  gross  violations  of  treaty  stipulations.  In 
the  Circuit  Court  of  the  United  States  it  was  held  that  the 
heirs  of  the  Italians  who  had  been  killed  could  not  recover.^ 


-  This  was  an  action  aiisinnc out  of 
wLat  are  known  as  the  Matia  Riots 
in  New  Oileaas  in  1891.  The  plain- 
tiff recovered  a  judgment  for  five 
thousand  dollars  for  the  death  of 
her  son,  who  was  killed  during  the 
course  of  the  riots.  He  was  an 
Italian  citizen.  The  liability  of 
the  municipal  governments  arising 
out  of  the  treaty  relations  of  the 
treaty  with  Italy  of  1871,  involved 
this  case.  The  Circuit  Court  of 
Appeals  reversed  the  decision  with 
instructions  to  maintain  the  excep- 
tion of  non-liability  of  the  city  and 
to  dismiss  the  plaintiff's  petition 
as  stated  in  the  opinion  ( pp.  541-42 ) : 

"The  City  of  New  Orleans  by 
her  pleadings  admits  the  gross  neg- 
ligence charged  in  the  petition  in 
the  performance  of  the  duties  de- 
volving upon  the  municipality  un- 
der the  constitution  and  laws  of 
the  state  above  referred  to,  where- 
by Abbagnato  lost  his  life  at  the 
hands  of  a  mob  while  in  the  cus- 
tody of  the  law;  and  the  question 
presented  in  this  case  is  whether 
on  such  admission  of  facts  the  city 
can  be  held  liable  in  damages. 

"  It  is  well  settled  that  at  com- 
mon law  no  civil  action  lies  for  an 
injury  to  a  person  which  results  in 
his  death.  Insurance  Company  vs. 
Brume,  95  U.  S.  754, 75(5;  Dennick  vs. 
Railroad  Company,  103  U.  S.  11,  21; 
The  Harrisburg,  119  U.  S.  199,  214. 
The  rule  is  the  same  under  the 
civil  law,  according  to  the  deci- 
sions   of    the  Louisiana  Supreme 


Court.  Hubgh  vs.  The  New  Orleans 
and  Carrollton  Railroad  Company,  6 
La.  Ann.  495;  Hermann  vs.  The  New 
Orleans  and  Carollton  Railroad 
Company,  11  La.  Ann.  5.  In  the 
absence  of  a  statute  giving  a  rem- 
edy, public  or  municipal  corpora- 
tions are  under  no  liability  to  pay 
for  the  property  of  individuals  de- 
stroyed by  mobs  or  riotous  assem- 
blages. Addison  on  Torts  ( notes  by 
Dudley  &  Uaylies,  1880),  sec.  1530; 
2  Dillon's  Municipal,  Corporations, 
sec.  959." 

The  effect  of  a  treaty  upon  the 
question  involved  was  discussed 
and  disposed  of  at  the  oi^eniug  of 
the  opinion  as  follows: 

"  The  treaty  between  the  King- 
dom of  Italy  and  tlie  United  States, 
proclaimed  on  November  23,  1871, 
guarantees  to  the  citizens  of  either 
nation  in  the  territory  of  the  other 
'  the  most  constant  protection  and 
security  for  their  persons  and  prop- 
erty,' and  further  provides  that 
they  shall  enjoy  in  this  respect 
the  same  rights  and  privileges  as 
are  or  shall  be  granted  to  the  na- 
tives, on  their  submitting  them- 
selves to  the  conditions  imposed 
upon  the  natives.'  Treaty  of  No- 
vember 23,  1871,  17  Stat.  (Treaties) 
49,  .50,  art.  3.  This  treaty  applies  to 
this  case  only  so  far  as  to  require 
that  the  rights  of  the  plaintiff  shall 
be  adjudicated  and  determined  ex- 
actly the  same  as  if  she  were,  and 
her  deceased  son  had  been,  a  na- 
tive citizen  of  the  United  States." 

155 


§  94  TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  III. 

§94.  Mr.  Blame's  position On  April  14,  1891,  Secre- 
tary Blaiiio  sent  a  lengthy  n(^te  to  the  Marquis  Im])eriali 
containing  a  resume  of  the  i)ositions  taken  by  the  United 
States  on  such  subjects,  and  in  which  he  recited  the  incident 
of  the  Spanish  Mob  of  1S51,  already  referred  to  in  this  chap- 
ter,^ and  also  declared,  that  ''if  it  shall  be  found,  as  seems 
probable,  that  criminal  proceedings  can  only  betaken  in  the 
courts  of  Louisiana  the  President  can,  in  this  direction,  do 
no  more  than  to  urge  upon  the  State  officers  the  duty  of 
promptly  bringing  the  offenders  to  trial." 

A  statement  at  the  end  of  his  letter,  however,  contained 
a  qualified  admission  as  to  the  liability  of  the  United  States, 
if  the  facts  were  as  claimed  by  the  Italian  government. 

Mr.  Blaine's  letter  is  exceedingly  guarded  as  to  all  possi- 
ble liabilit}"  of  the  United  States  and  the  extract  in  the  notes 
appended  to  this  section  shows  that  he  took  the  position  that 
the  citizens  of  foreio-n  countries  residincr  in  our  States  must 
seek  their  redress  from  the  courts  of  those  States,  and  that  the 
United  States  government  does  not  become  the  insurer  of 
lives  of  the  citizens  of  foreign  countries,  even  though  it  may 
enter  into  treaty  stipulations  with  them,  but  that  all  it  can 
do  or  is  called  upon  to  do  is  to  afford  to  citizens  of  those 
countries  the  same  rig-hts  which  citizens  of  the  United  States 
are  accorded  under  similar  circumstances.^ 

New  Orleans  vs.  Abbagnato,  U.  S.        §  94. 
Cir.  Ct.  App.,  .5  Cir.,  23  U.  S.  App.       i  See  §  88  ante. 
533,  Pardee,  J. 

-The  correspondence  between  this  country  and  Italy  in  regard  to  the 
Mafia  Riots  appears  in  the  Foreign  Relations  Reports  for  1891.  The  fol- 
lowing is  an  extract  from  a  note  sent  on  April  14, 1891,  by  James  G.  Blaine, 
then  Secretary  of  State,  to  the  Marquis  Imperiali,  the  Italian  minister 
to  the  United  States: 

"If  it  shall  result  that  the  case  can  be  prosecuted  only  in  the  State 
courts  of  Louisiana,  and  the  usual  judicial  investigation  and  jjrocedure 
under  the  criminal  law  is  not  resorted  to,  it  will  then  be  the  duty  of  the 
United  States  to  consider  whether  some  other  form  of  redress  may  be 
asked.  It  is  understood  that  the  State  grand  jury  is  now  investigating 
the  affair,  and,  while  it  is  possible  that  the  jury  maj-  fail  to  present  the 
indictments,  the  United  States  cannot  assume  that  such  will  be  the  case. 

"The  United  States  did  not  by  the  treaty  with  Italy  become  the  in- 
surer of  the  lives  or  property  of  Italian  subjects  resident  within  our 
territory.  No  Government  is  able,  however  high  its  civilization,  how-» 
ever  vigilant  its  police  supervision,  however  severe  its  criminal  code, 

156 


CH.  III.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.      §  95 

§  95.  Final  result  of  the  Mafia  cases. — A  year  after  the 
Mafia  Riots,  Secretary  Blaine  tendered  to  the  Italian  gov- 
ernment 125,000  francs  to  be  distributed  by  that  government 

and  however  prompt  aad  iuflexible  its  criminal  administration,  to  secure 
its  own  citizens  against  violence  promoted  by  individual  malice  or  by 
sudden  popular  tumult.  The  foreign  resident  must  be  content  in  such 
cases  to  share  the  same  redress  that  is  offered  by  the  law  to  the  citizen, 
and  lias  no  just  cause  of  complaint  or  right  to  ask  the  interposition  of 
his  country  if  the  courts  are  equally  open  to  him  for  the  redress  of  his 
injuries.  The  treaty,  in  the  first,  second,  third,  and,  notably,  in  the 
twenty-third  articles,  clearly  limits  the  rights  guaranteed  to  the  citizens 
of  the  contracting  powers  in  tlie  territory  of  each  to  equal  treatment  and 
to  free  access  to  the  courts  of  justice.  Foreign  residents  are  not  made 
a  favored  class.  It  is  not  believed  that  Italy  would  desire  a  more  strin- 
gent construction  of  her  duty  under  the  treaty.  Where  the  injury  in- 
flicted upon  a  foreign  resident  is  not  the  act  of  the  Government  or  of  its 
officers,  but  of  an  individual  or  of  a  mob,  it  is  believed  that  no  claim  for 
indemnity  can  justly  be  made,  unless  it  shall  be  made  to  appear  that  the 
public  authorities  charged  with  the  peace  of  the  community  have  con- 
nived at  the  unlawful  act,  or,  having  timely  notice  of  the  threatened 
danger,  have  been  guilty  of  such  gross  negligence  in  taking  the  neces- 
sary precautions  as  to  amount  to  connivance. 

"  If,  therefore,  it  should  appear  that  among  those  killed  by  the  mob 
at  New  Orleans  there  were  some  Italian  subjects  who  were  resident  or 
domiciled  in  that  city,  agreeably  to  our  treaty  with  Italy,  and  not  in 
violation  of  our  immigration  laws,  and  who  were  abiding  in  the  peace 
of  the  United  States  and  obeying  the  laws  thereof  and  of  the  State  of 
Louisiana,  and  that  the  public  officers  charged  with  the  duty  of  protect- 
ing life  and  property  in  that  city  connived  at  the  work  of  the  mob,  or, 
upon  proper  notice  or  information  of  the  threatened  danger,  failed  to 
take  any  steps  for  the  perservation  of  the  public  peace  and  afterwards 
to  bring  the  guilty  to  trial,  the  President  would,  under  such  circum- 
stances, feel  that  a  case  was  established  that  should  be  submitted  to 
the  consideration  of  Congress  with  a  view  to  the  relief  of  the  families 
of  the  Italian  subjects  who  had  lost  their  lives  by  lawless  violence." 
(Foreign  Relations  of  the  United  States,  1891,  p.  685.) 

Mr.  Blaine's  note  being  transmitted  to  his  government  called  forth 
the  following  cable  reply  from  the  Marquis  Rudini  to  the  Marquis  Im- 
periali  which  was  received  at  the  State  Department  May  4,  1891: 

"I  have  now  before  me  a  note  addressed  to  you  by  Secretary  Blaine, 
April  14.  Its  perusal  produces  a  most  painful  impression  upon  me.  I 
will  not  stop  to  lay  stress  upon  the  lack  of  conformity  with  diplomatic 
usages  displayed  in  making  use,  as  Mr.- Blaine  did  not  hesitate  to  do,  of 
a  portion  of  a  telegram  of  mine  communicated  to  him  in  strict  confi- 
dence, in  order  to  get  rid  of  a  questi<m  clearly  defined  in  our  official 
documents,  which  alone  possess  a  diplomatic  value.  Nor  will  I  stop  to 
-  point  out  the  reference  in  this  telegram  of  mine  of  March  24,  that  the 
words  '  punishment  of  the  guilty  '  in  the  brevity  of  telegraphic  language 

157 


§  95  TREATY-MAKING  POWER  OF  THE  U.  S.        [CII.  UI. 

amongst  the  families  of  the  victims ;  the  letter  offering  this 
indemnity  disclaimed  any  liability  on  the  part  of  the  United 
States  government,  as  appears  by  the  following  extract : 

"  While  the  injury  was  not  inflicted  directly  by  the  United 
States,  the  President,  nevertheless,  feels  that  it  is  the  solemn 
duty,  as  well  as  the  great  pleasure,  of  the  national  govern- 
ment to  pay  a  satisfactory  indemnity.  Moreover  the  Presi- 
dent's instructions  carry  with  them  the  hope  that  the  trans- 
action of  to-day  may  efface  all  memory  of  the  unhappy 
tragedy ;  that  the  old  and  friendly  relations  of  the  United 
States  and  Italy  may  be  i-estored ;  and  that  nothing  un- 

signified  only  that  prosecution  ought  to  be  commenced,  in  order  that 
the  individuals  recognized  as  guilty  should  not  escape  punishment. 

"  Far  above  all  astute  arguments  remains  the  fact  that  henceforth  the 
Federal  Government  declares  itself  conscious  of  what  we  have  con- 
stantly asked,  and  yet  it  does  not  grant  our  legitimate  demands. 

"Mr.  Blaine  is  right  when  he  makes  the  payment  of  indemnity  to  the 
families  of  the  victims  dependent  upon  proof  of  the  violation  of  the 
treaty;  but  we  shrink  from  thinking  that  he  considers  that  the  fact  of 
such  violation  still  needs  proof.  Italian  subjects  acquitted  by  Ameri- 
can juries  were  massacred  in  prisons  of  the  State  without  measures 
being  taken  to  defend  them. 

"  What  other  proof  does  the  Federal  Government  expect  of  a  viola- 
tion of  a  treaty  wherein  constant  protection  and  security  of  subjects  of 
the  contracting  parties  is  expressly  stipulated? 

"  We  have  placed  on  evidence  tliat  we  have  never  asked  anything  else 
but  the  opening  of  regular  proceedings.  In  regard  to  this.  Baron  Fava's 
first  note,  dated  March  15,  contained  even  the  formula  of  the  telegram 
addressed  on  the  same  day  by  Mr.  Blaine,  under  the  order  of  President 
Harrison,  to  the  governor  of  Louisiana.  jSTow,  however,  in  the  note  of 
April  14,  Mr.  Blaine  is  silent  on  the  subject  which  is,  for  us,  the  main 
point  of  controversy. 

"  We  are  under  the  sad  necessity  of  concluding  that  what  to  every 
other  government  would  be  the  accomplishment  of  simple  duty  is  im- 
possible to  the  Federal  Government.  It  is  time  to  break  off  the  boot- 
less controversy.  Public  opinion,  the  sovereign  judge,  will  know  how 
to  indicate  an  equitable  solution  of  this  grave  problem. 

"  We  have  affirmed,  and  we  again  affirm,  our  right.  Let  the  Federal 
Government  reflect  upon  its  side  if  it  is  expedient  to  leave  to  the  mercy 
of  each  State  of  the  Union,  irresponsible  to  foreign  countries,  the  effi- 
ciency of  treaties  pledging  its  faith  and  honor  to  entire  nations. 

"  The  present  dispatch  is  addressed  to  you  exclusively,  not  to  the 
Federal  Government. 

"Your  duties  henceforth  are  solely  restricted  to  dealing  with  current 
business."     (Foreign  Relations  of  the  United  States,  1891,  p.  712.) 
158 


CH.  III.J    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS. 


95 


toward  may  ever  again  occur  to  disturb  their  harmonious 
friendship." 

The  Marquis  Imperiali  replied,  accepting  the  indemnity 
and  declaring  that  the  diplomatic  relations  between  Italy 
and  the  United  States  were,  from  that  moment,  fully  re- 
established. Thus  ended  one  of  those  unfortunate  occur- 
rences which  are  possible  even  in  the  most  civilized  countries 
ami  which,  unless  they  are  settled  diplomatically  by  both 
sides  making  concessions,  may  result  in  strained  relations 
between  governments,  which  oftentimes  are,  unhappily,  only 
terminated  by  war.^ 


§95. 

1  The  correspondence  was  as  fol- 
lows: 

From  Mr.  Blaine  to  the  Marquis 
Imperiali,  April  12,  1892: 

"Sir:  I  congratulate  you  that 
the  difficulty  existing  between  the 
United  States  and  Italy  growing 
out  of  the  lamentable  massacre  at 
New  Orleans  in  March  of  last  year 
is  about  to  be  terminated.  The 
President,  feeling  that  for  such  an 
injury  there  should  be  ample  in- 
demnity, instructs  me  to  tender  to 
you  125,000  francs.  The  Italian 
Government  will  distribute  this 
sum  among  the  families  of  the  vic- 
tims. 

"While  the  injury  was  not  in- 
flicted directly  by  the  United 
States,  the  President  nevertheless 
feels  that  it  is  the  solemn  duty,  as 
well  as  the  great  pleasure,  of  the 
National  Government  to  pay  a  satis- 
factory indemnity.  Moreover,  the 
President's  instructions  carry  with 
them  the  hope  that  the  transaction 
of  today  may  efface  all  memory  of 
the  unhappy  tragedy;  that  the  old 
and  friendly  relations  of  tlie  United 
States  and  Italy  may  be  restored; 
and  that  nothing  untoward  may 
ever  again  occur  to  disturb  their 
harmonious  friendship. 

"I  avail  myself  of  this  occasion 


to  assure  you  that  your  prolonged 
service  at  this  capital  as  charge 
des  affairs  has  been  marked  by 
every  quality  that  renders  you 
grateful  and  acceptable  to  the  Gov- 
ernment of  the  United  States,  and 
to  renew  to  you  the  assurance  of 
my  high  consideration."  (For- 
eign Relations  of  the  United  States, 
1891,  pp.  727,  728. ) 

The  Marquis  Imperiali  to  Mr. 
Blaine  April  12,  1892: 

"Mr.  Secretary  of  State:  You 
were  pleased  to  inform  me,  by  your 
note  of  today,  that  the  Federal 
Government  has  decided  to  pay  to 
Italy,  by  way  of  indemnity,  the 
sum  of  12,5,000  francs,  which  will 
be  distributed  by  the  Italian  Gov- 
ernment among  the  families  of  the 
royal  subjects  who  were  victims  of 
the  massacre  which  took  place 
March  14,  1891,  in  the  city  of  New 
Orleans.  Your  excellency  also  ex- 
presses the  hope  that  the  decision 
reached  by  the  President  will  put 
an  end  to  the  unfortunate  incident 
to  which  that  deplorable  occur- 
rence gave  rise,  and  that  the  rela- 
tions between  the  two  countries 
will  be  firmly  re-established. 

"  After  having  taken  note,  with 
much  pleasure,  of  the  language 
used  by  the  President  in  his  mes- 
sage of  December  last,  and  after 

169 


§  96  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  in. 

§  00.  The  "  Montijo  "  case ;  claims  by  the  United  States 
against  other  confederations ;  federal  responsibility  for 
acts  of  State. — In  April,  1871,  the  steamer  Montijo  belonging 
to  citizens  of  the  United.  States  was  seized  by  revolutionists 
while  on  a  voj^age  to  Panama,  being  at  the  time  within  the 
jurisdiction  of  the  United  States  of  Colombia. 

The  claim  was  duly  presented  and  after  an  extended  diplo- 
matic corres})ondence  an  agreement  of  arbitration  was  entered 
into  between  the  United  States  and  the  Colombian  govern- 
ment in  August,  1874.^  During  the  course  of  the  correspond- 
ence the  question  of  the  liability  of  the  central  government 
of  Colombia  for  the  acts  of  the  State  of  Panama  which  was 
one  of  the  constituent  States  forming  that  confederation  was 
raised.  The  United  States  claimed  that  under  the  peculiar 
circumstances  the  acts  constituted  a  breach  of  treaty  stipu- 
lations for  which  the  federal  government  was  liable.  On 
the  other  hand  the  Colombian  government  disclaimed  all  lia- 


having  fully  appreciated  the  words 
of  regret  and  censure  uttered  with 
so  much  authority  by  the  Chief 
Magistrate  of  the  Republic,  and 
likewise  the  recommendations  that 
were  suggested  by  the  lamentable 
incident  to  his  lofty  wisdom,  His 
Majesty's  Government  is  now 
happy  to  learn  that  the  United 
States  acknowledge  that  it  is  their 
solemn  duty,  and  at  the  same  time 
a  great  pleasure,  to  pay  an  indem- 
nity to  Italy. 

"The  King's  Government  does 
not  hesitate  to  accept  tliis  indem- 
nity without  prejudice  to  the  judi- 
cial steps  which  it  may  be  proper 
for  the  parties  to  take,  and,  con- 
sidering the  redress  obtained  suf- 
ficient, it  sees  no  reason  why  the 
relations  between  the  two  Govern- 
ments, which  relations  should  faith- 
fully reflect  the  sentiments  of  re- 
ciprocal esteem  and  sympathy  that 
animate  the  two  nati(ms,  should 
not  again  become  intimate  and  cor- 
dial, as  they  have  traditionally  been 
160 


in  the  past  and  as  it  is  to  be  hoped 
they  will  ever  be  in  the  future. 

"  In  bringing  the  foregoing  to 
your  knowledge,  in  virtue  of  the 
authorization  given  me  by  his  ex- 
cellency the  Marquis  di  Rudini, 
president  of  the  council,  minister 
of  foreign  affairs,  in  the  name  of 
the  Government  of  his  Majesty,  the 
King  of  Italy,  my  August  Sover- 
eign, I  have  the  honor  to  declare  to 
your  excellency  that  the  diplomatic 
relations  between  Italy  and  the 
United  States  are  from  this  mo- 
ment fully  re-established. 

"I  hasten,  moreover,  in  obe- 
dience to  instructions  received,  to 
inform  you  that,  pending  the  min- 
ister's return  to  this  capital,  I  have 
taken  charge  of  the  royal  legation 
in  the  capacity  of  charge  d'affaires. 

"  Be  pleased  to  accept,  etc." 
(Foreign  Relations  of  the  United 
States,  1891,  p.  728. ) 

§  96. 

1  Moore's  International  Arbitra- 
tions History,  vol.  II,  p.  1425. 


CH.  in.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.      §  98 

bility,  alleging  that  the  improper  acts,  if  any,  were  commit- 
ted within  the  jurisdiction  of  Panama  and  were  beyond  the 
control  of  the  federal  government. 

§  97.  Result  of  the  Arbitration. — In  April,  1875,  the 
Colombian  arbitrator  hied  an  opinion  holding  that  the  fed- 
eral government  of  Colombia  had  not  incurred  any  liability 
to  the  American  claimants.  The  United  States  arbitrator 
at  the  same  time  filed  an  opinion  maintaining  the  opposite 
view.  The  matter  was  subsequently  referred  to  an  umpire 
who,  in  July,  1875,  rendered  an  award  in  favor  of  the  United 
States  for  $33,000,  which  was  considerably  less  than  the  de- 
mand made  by  the  owners  of  the  steamer. 

§  98.  Decision  of  the  Umpire. — There  were  many  points 
in  the  decision  of  the  umpire,  who  was  Mr.  Robert  Bunch  the 
British  Minister  at  Bogota,  which  did  not  involve  the  ques- 
tion of  responsibility  of  a  federal  government  for  the  acts  of 
one  of  the  constituent  States,  but  we  refer  to  the  opinion 
only  in  that  respect.  In  discussing  this  question  he  says : 
"  The  reason  advanced  by  the  Colombian  arbitrator  is  that 
the  government  of  that  Union  cannot  be  held  answerable 
for  the  failure  of  that  of  Panama  to  compensate  the  owners 
of  the  Montijo,  because  the  former  has  no  connection  with  it 
and  private  debts,  especially  with  those  which  have  in  the 
case  a  vicious  origin.  To  this  the  undersigned  (the  Umpire) 
replies.  First:  That  in  his  opinion  the  government  of  the 
Union  has  a  very  clear  and  decided  connection  with  the  debts 
incurred  by  the  States  of  the  Union  towards  foreigners  whose 
treaty  rights  have  been  invaded  or  attacked  ;  and  Secondly : 
That  the  debts  so  incurred  by  the  separate  States  are  in  no 
way  private,  but  on  the  contrary,  are  entirely  public  in  their 
character." 

The  Umpire  then  proceeds  to  discuss  the  question  ;  he  re- 
viewed the  McLeod  case  at  length  and  in  referring  to  it  said 
that  undoubtedly  the  liability  of  federal  powers  for  acts  of 
the  constituent  States  may  produce  to  the  nation  at  large  the 
gravest  complications  :  he  also  held  that  debts  contracted  by 
duly  authorized  officers  of  a  given  State  are  essentially  pub- 
lic and  can  be  the  subject  of  an  international  arbitration  of 
this  nature.' 

J  For  note'l,  see  next  page. 

11  161 


§  98  tkeaty-:nla.king  power  of  the  u.  s.      [ch.  in. 

A  full  account  of  this  controversy  and  the  award  of  the 
umpire  can  be  found  in  Chapter  XXIX  of  the  second  vol- 
ume of  Moore's  History  of  International  Arbitration. 

§98. 

1  "  XATIONAIi   RESPONSIBILITY   FOB  STATE   ACTS. 

"  '  There  remains  to  be  considered  the  concluding  portion  of  the  sixth 
reason  advanced  by  the  Colombian  arbitrator,  which  is  that  the  govern- 
ment of  the  Union  cannot  be  held  answerable  for  the  failure  of  that  of 
Panama  to  compensate  the  owners  of  the  Montijo  because  the  former 
has  no  connection  (soiidaridad)  with  private  debts,  especially  with  those 
which  have,  as  in  the  present  case,  a  vicious  origin. 

"  '  To  this  the  undersigned  replies,  first,  that  in  his  opinion  the  gov- 
ernment of  the  Union  has  a  very  clear  and  decided  connection  with  the 
debts  incurred  by  the  States  of  the  Union  toward  foreigners  whose 
treaty  rights  have  been  invaded  or  attacked;  and,  secondly,  that  the 
debts  so  incurred  by  the  separate  States  are  in  no  way  private,  but,  on 
the  contrary,  entirely  public  in  their  character. 

" '  As  regards  the  first  point,  it  cannot  be  denied  that  the  treaties 
under  which  the  residence  of  foreigners  in  Colombia  is  authorized,  and 
their  rights  during  such  residence  defined  and  assured,  are  made  with 
the  general  government,  and  not  with  the  separate  States  of  which  the 
Union  is  composed.  The  same  practice  obtains  in  the  United  States,  in 
Switzerland,  and  in  all  countries  in  which  the  federal  system  is  adopted. 
In  the  event,  then,  of  the  violation  of  a  treaty  stipulation,  it  is  evident 
that  a  recourse  must  be  had  to  the  entity  with  which  the  international 
eng;igements  were  made.  There  is  no  one  else  to  whom  application 
can  be  directed.  For  treaty  purposes  the  separate  States  are  nonexistent; 
they  have  parted  with  a  certain  defined  portion  of  their  inherent  sover- 
eignty, and  can  only  be  dealt  with  through  their  accredited  representa- 
tive or  delegate,  the  federal  or  general  government. 

"  '  But  if  it  be  admitted  that  such  is  the  theory  and  the  practice  of 
the  federal  system,  it  is  equally  clear  that  the  duty  of  addressing  the 
general  government  carries  with  it  the  right  to  claim  from  that  gov- 
ernment, and  from  it  alone,  the  fulfillment  of  the  international  pact. 
If  a  manifest  wrong  be  committed  by  a  separate  State,  no  diplomatic 
remonstrance  can  be  addressed  to  it.  It  is  true  that  in  such  a  case  the 
resident  consular  ofiicer  of  a  foreign  power  may  call  the  attention  of  the 
transgressing  State  to  the  consequences  of  its  action,  and  may  endeavor 
by  timely  and  friendly  intervention  on  the  spot  to  avoid  the  necessity 
of  an  ultimate  application  to  the  general  government  through  the  cus- 
tomary diplomatic  channel;  but  should  this  overture  fail,  there  remains 
no  remedy  but  the  interference  of  the  federal  power,  which  is  bound 
to  redress  the  wrong,  and,  if  necessary,  compensate  the  injured  for- 
eigner. 

"  'If  this  rule  which  the  undersigned  believes  to  he  beyond  dispute, 
be  correctly  laid  down,  it  follows  that  in  every  case  of  international 
wrong  the  general  government  of  this  republic  has  a  very  close  connec- 
tion with  the  proceedings  of  the  separate  States  of  the  Union.  As  it, 
162 


CH.  III.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.      §  99 

§  99.  Moore's  History  of  International  Arbitration. — 

The  author  wishes  to  take  this  opportunity  of  expressing  the 

and  it  alone,  is  responsible  to  foreign  nations,  it  is  bound  to  show  in 
every  case  that  it  has  done  its  best  to  obtain  satisfaction  from  the  ag- 
gressor. 

"  '  But  it  will  probably  be  said  that  by  the  constitution  of  Colombia 
the  federal  power  is  prohibited  from  interfering  in  the  domestic  dis- 
turbances of  the  States,  aad  that  it  cannot  in  justice  be  made  account- 
able for  acts  which  it  has  not  the  power,  under  the  fundamental  char- 
ter of  the  republic  to  prevent  or  to  punish.  To  this  the  undersigned 
will  remark  that  in  such  a  case  a  treaty  is  superior  to  the  constitution, 
which  latter  must  give  way.  The  legislation  of  the  republic  must  be 
adapted  to  the  treaty,  not  the  treaty  to  the  laws.  This  constantly  hap- 
pens in  engagements  between  separate  and  independent  nations.  For 
the  purposes  of  carrying  out  the  stipulations  of  a  treaty,  special  laws 
are  required.  They  are  made  ad  Iioc,  even  though  they  may  extend  to 
foreigners'  privileges  and  immunities  which  the  subjects  or  citizens  of 
one  or  both  of  the  treaty-making  powers  do  not  enjoy  at  home. 

"  '  That  under  such  a  rule  apparent  injustice  may  occasionally  be  com- 
mitted is  probably  true.  But  it  is  more  apparent  then  real.  It  may 
seem  at  first  sight  unfair  to  make  the  federal  power,  and  through  it  the 
taxpayers  of  the  country,  responsible,  morally  and  pecuniarily,  for 
events  over  which  they  have  no  control,  and  which  they  probably  dis- 
approve or  disavow,  but  the  injustice  disappears  when  this  inconven- 
ience is  found  to  be  inseparable  from  the  federal  system.  If  a  nation 
deliberately  adopts  that  form  of  administering  its  public  affairs,  it 
does  so  with  the  full  knowledge  of  the  consequences  it  entails.  It  cal- 
culates the  advantages  and  the  di-awbacks,  and  cannot  complain  if  the 
latter  now  and  then  make  themselves  felt. 

"  'That  this  liability  of  the  federal  power  for  the  acts  of  the  States 
may  produce  to  the  nation  at  large  the  gravest  complications  is  matter 
of  history.  Probably  the  most  serious  case  of  this  inconvenience  on 
record  is  that  of  a  British  subject  named  McLeod,  whose  arrest  and 
trial  by  the  State  of  New  York  nearly  involved  Great  Britain  and  tlie 
United  States  in  a  war.  During  the  Canadian  rebellion,  an  American 
steamer  called  the  Caroline,  which  had  been  engaged  in  carrying  arms 
to  tlie  rebels,  was  boarded  in  the  night  by  a  party  of  loyalists,  set  on 
fire,  and  driven  over  the  Falls  of  Ningara.  In  this  affray  an  American 
citizen  lost  his  life.  In  January,  1841,  Alexander  McLeod,  a  British 
subject,  was  arrested  while  engaged  in  some  business  in  New  York 
State,  and  imprisoned  on  a  charge  of  murder  because  as  was  alleged, 
he  was  concerned  in  the  attack  on  the  vessel.  The  British  Government 
demanded  his  release  on  the  ground  that  he  was  acting  under  orders, 
and  that  the  responsibility  rested  with  Great  Britain  and  not  with  the 
individual.  The  Secretary  of  State  of  the  United  States  replied  tliat 
his  government  was  powerless  in  the  matter,  as  it  could  not  interfere 
with  the  tribunals  of  the  State  of  New  York.  Great  Britain  then  caused 
it  to  be  distinctly  understood  that  the  condemnation  and  execution  of 

163 


§  99  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  IH. 

o-reat  oblio-ation  that  all  students  of  international  law  are 
under  to  the  Honorable  John  Bassett  Moore  for  his  great 

Mr.  McLcod  would  be  immediately  followed  by  a  declaration  of  war. 
Lord  l-'almersttm,  then  secretary  for  foreign  affairs,  told  Mr.  Stevenson, 
United  States  minister  in  London,  that  such  would  be  the  case.  Great 
efforts  were  made  by  the  friends  of  peace,  and  as  much  pressure  as 
could  properly  be  applied  to  the  State  of  New  York  was  brought  to 
bear,  and  McLeod  was  acquitted.  But  two  great  and  powerful  nations 
were  on  the  verge  of  a  disastrous  war  because  the  federal  power  was 
held  liable  for  the  acts  of  a  separate  State. 

"  'As  regards  the  second  point  made  by  the  Colombian  arbitrator  that 
the  debts  incurred  to  foreigners  by  the  separate  States  of  the  Union  are 
private  in  their  character,  the  undersigned  can  only  express  his  dissent 
from  the  doctrine.  If  an  engagement,  pecuniary  or  other,  made  by  the 
constitutional  head  of  a  State,  acting,  as  in  the  present  case,  '  in  virtue 
of  powers  conferred  by  law,'  is  to  be  considered  in  the  same  light  as 
an  ordinary  mercantile  debt  and  only  to  be  recoverable  in  the  same 
manner,  the  possibility  of  a  State  contracting  with  either  native  or 
foreigners  would  soon  be  reduced  to  very  narrow  limits.  The  chances 
of  repayment  would  dejjeud  on  the  stability  of  the  contracting  govern- 
ment, and  this  of  itself  would  introduce  an  element  of  considerable 
uncertainty  into  such  transactions. 

"  '  The  undersigned  holds  that  all  debts  contracted  by  duly  authorized 
officers  of  a  given  State  are  essentially  public  in  their  character,  and 
that  their  nonpayment  can  be  made  the  subject  of  remonstiance  by  a 
foreign  nation  should  the  engagements  be  contracted  with  its  subjects 
or  citizens.  It  is  quite  true  that  Great  Britain,  the  greatest  lender  of 
money  in  existence  does  not  feel  herself  bound  to  interfere  on  behalf 
of  her  sul)jects  in  every  case  where  they  may  have  lent  money  to  foreign 
countries,  as  she  holds,  as  a  general  rule,  that  they  may  be  left  to  find 
their  own  remedy  for  their  imprudence;  but  she  explicitly  declares 
that  this  absentation  on  her  part  is  a  mere  matter  of  discretion,  and  that 
she  has  the  undoubted  right  to  interfere  whenever  she  may  see  fit  to 
do  so. 

"  '  As  regards  the  '  vicious  origin,'  of  the  present  debt,  the  under- 
signed does  not  view  it  in  that  light;  he  cannot,  therefore,  agree  with 
any  deductions  from  that  assumption. 

'"For  these  reasons  the  undersigned  holds,  as  a  general  principle, 
that  the  government  of  the  Union  is  responsible  in  certain  cases  for  the 
wrongs  inflicted  on  foreigners  by  the  separate  States,  and  that  debts 
contracted  by  the  constituted  authorities  of  those  States  r^re  not  private 
in  their  character.  He  is  compelled,  therefore,  to  dissent  from  the 
sixth  reason  of  the  Colombian  arbitrator. 

"  'The  undersigned  has  now  reviewed  to  the  best  of  his  ability  the 
able  and  elaborate  arguments  of  the  honorable,  the  arbitrator  of  Colom- 
bia on  this  question.  He  wishes  he  could  have  brought  to  the  task  the 
same  brilliant  qualities  which  Senor  Tanco  has  so  liberally  displayed, 
and  it  would  have  been  agreeable  to  him  to  have  concurred  in  the  views 
164 


CH.  m.]    SOVEREIGNTY  OP  U.  S.  AND  OTHER  POWERS.    §  100 

and  valuable  work  on  International  Arbitration  and  the  posi- 
tion of  the  United  States  in  regard  thereto. 

To  write  a  history  of  the  lilty-two  arbitrations  to  which, 
the  United  States  has  been  a  party,  with  references  to  all  the 
other  arbitrations  which  have  settled  international  disputes 
between  other  countries,  amounting  in  all  to  over  one  hun- 
di'ed  and  fifteen  separate  cases,  is  an  undertaking  which  any 
man  may  well  shrink  from,  no  matter  how  well  qualified  he 
may  be  for  the  task;  the  complete  and  admirable  manner, 
however,  in  which  Mr.  Moore  has  performed  and  accom- 
plished his  work  will  always  remain  a  monument  not  only  to 
his  great  ability,  but  also  to  his  untiring  perseverance. 

No  one  interested  in  subjects  involving  arbitrations,  treaty 
rights,  rights  of  citizenship  or  other  matters  connected  with 
the  foreign  relations  of  the  United  States  should  fail  either 
to  read  the  history  or  to  examine  the  digest  volume,  as  the 
scope  of  the  work  is  so  wide  that  almost  every  conceivable 
subject  involved  in  international  relations  which  has  been  the 
subject  of  adjudication  by  international  arbitration  can  be 
found  at  its  proper  place  in  Mr.  Moore's  historv.^ 

§  100.  Importance  of  the  "  Moiitijo  "  decision  on  the  posi- 
tion of  the  United  St.ates. — The  claim  of  the  owners  of 
the  Montijo  was  pi'esented  through,  and  prosecuted  by,  the 
State  Department  of  the  United  States,  and  the  arbitrator 
appointed  by  the  United  States  was  a  government  official, 
being  the  minister  resident  to  the  Colombian  government. 
This  decision  may  at  some  future  time  be  used  as  a  precedent 

of  a  gentleman  whom  he  so  highly  esteems.'  "  Moore,  International 
Arbitrations'  History,  vol.  2,  pages  1439-1442. 


§99. 

1  Moore  John  Bassett;  Interna- 
tional Arbitrations — History. 

History  and  Digest  of  the  Inter- 
national Arbitrations  to  which  the 
United  States  has  been  a  Party,  to- 
gether with  Appendices  containing 
the  Treaties  relating  to  such  Arbi- 
trations and  Historical  and  Legal 
Notes  on  other  International  Arbi- 
trations, Ancient  and  Modern,  and 
on  the  Domestic  Commissi  ons  of  tlie 
United  States  for  the  Adjustment 


of  International  Claims,  By  John 
Bassett  Moore,  Hamilton  Fish  Pro- 
fessor of  International  Law  and 
Diplomacy,  Columbia  University, 
New  York;  Associate  of  the  Insti- 
tute of  International  Law;  some 
time  Assistant  Secretary  of  State  of 
the  United  States;  author  of  a  work 
on  Extradition  and  Interstate  Ren- 
dition, of  American  Notes  on  the 
Conflict  of  Laws,  etc.  In  six  vol- 
umes, Washington  Government 
Printing  Office,  1898. 

165 


§  102  TREATY-IVIAKING  POWER  OF  THE  U.  S.        [CH.  HI. 

against  the  contention  of  the  United  States  that  it  is  not  re- 
sponsible for  violations  of  treaty  stipulations  resulting  from 
the  acts,  or  negligence,  of  the  States  composing  the  Union. 
There  ma}',  however,  be  some  points  of  difference  between 
the  cases  which  arise  hereafter,  which  will  enable  the  United 
States  Government  to  distinguish  them  from  this  case  which 
involved  revolutions,  and  hostilities  in  which  the  armed  forces 
of  both  State  and  Federal  powers  were  engaged. 

§  101.  Differeut  meauiugs  of  the  term  "  United  States  " 
Tvheu  considered  from  external  and  internal  standpoints 
again  referred  to. — The  difference  between  the  internal  re- 
lations of  one  part  of  the  United  States  to  another,  and  the 
relations  of  the  entire  country  to  foreign  powers  has  been 
the  subject  of  judicial  consideration  by  the  courts  of  the 
United  States  on  more  than  one  occasion.  The  cases  now 
pending  before  the  Supreme  Court  which  have  already  been 
referred  to  in  this  volume  involve  similar  questions  and  dis- 
tinctions ;^  a  brief  reference  will  be  made  to  some  of  the  deci- 
sions of  the  courts.^ 

§102.  Official  definition  of  the  word  "country."— The 
word  "  country ''  has  been  officiall}'  defined  by  Regulation 


§  101. 

1  Tlie  status  of  territories  of  the 
United  States  has  aheady  been 
referred  to  in  the  author's  note  to 
section  11,  on  meaning  of  the  term 
United  States.  (See  pp.  24-28, 
ante.)  It  was  also  referred  to  at 
the  close  of  chapter  I.,  under 
sections  36,  et  seq.,  pp.  62,  et  seq.  ; 
and  in  chapter  III.,  sections  61,  et 
seq.,  and  notes  in  regard  to  the 
tariff  cases  now  pending  in  the 
Supreme  Court.  See  all  cases 
cited  under  those  notes,  and  see 
also  collation  of  cases  in  briefs  of 
Attorney  General  and  opposing 
counsel  in,  Gnetze  vs.  United  States, 
and  other  Porto  Rico  cases  argued 
before  the  Supreme  Court,  Decem- 
ber, 1900,  and  January,  1901;  and 


opinion,  Townsend,  J.,  in  U.  S. 
Circuit  Court,  S.  D.  N.  Y.  1900, 
103  Fed.  Rep.  72.  See  also  Senate 
Document  No.  234,  LVI.  Con- 
gress, first  session,  being  report 
on  legal  status  of  the  territory 
and  inhabitants  of  the  islands  ac- 
quired by  the  United  States  dur- 
ing the  war  with  Spain,  considered 
with  reference  to  territorial  bound- 
aries, the  Constitution  and  laws  of 
the  United  States,  by  Charles  E. 
Magoon,  Law  Office,  Division  of 
Insular  Affairs,  War  Department, 
submitted  to  Secretary  of  War, 
Elihu  Root,  February  12,  1900, 
presented  to  the  Senate  by  Cush- 
man  K.  Davis,  Chairman  of  the 
Committee  on  Foreign  Relations, 
March  20,  1900. 


2  See  also  cases  collated  in  Insular  Cases  Appendix  at  end  of  this 
volume  on  this  point. 

166 


CH.  ni.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.    §  103 

835  of  the  Treasury  Department  of  the  United  States  ^  as  "  em- 
bracing all  the  possessions  of  any  power,  however  widely 
separated,  which  are  subject  to  the  same  supreme  Executive 
or  Legislative  authority  and  control ; "  this  definition  was 
sustained  by  the  Supreme  Court  in  Stairs  vs.  Peaslee  in  1855, 
as  appears  by  the  following  extract  from  the  opinion : 
"The  word  country  in  the  revenue  laws  of  the  United 
States  has  always  been  construed  to  embrace  all  the  posses- 
sions of  a  foreign  State  however  widely  separated,  Avhich  are 
subject  to  the  same  supreme  Executive  and  Legislative  con- 
trol. The  question  was  brought  before  the  Treasury  Depart- 
ment in  1817 ;  and,  on  the  29th  of  September  in  that  year, 
instructions  were  issued  by  the  department  in  a  circular  ad- 
dressed to  the  different  collectors,  in  which  the  construction 
above  stated  is  given  to  the  word.  The  practice  of  the  gov- 
ernment has  ever  since  conformed  to  this  construction ;  and 
it  must  be  presumed  that  Congress,  in  its  subsequent  legisla- 
tion on  the  subject,  used  the  word  according  to  its  known 
and  established  interpretation.  Apart,  however,  from  this 
consideration,  we  regard  the  construction  of  the  Treasury 
Department  as  the  true  one.  Congress  certainly  could  not 
have  intended  to  refer  to  mere  localities  or  geographical  divi- 
sions, without  regard  to  the  States  or  nations  to  which  they 
belonged."  ^ 

§  103.  Status  of  territory  conquered  by  military  forces 
of  the  United  States.— The  unity  of  all  territory  under  the 
jurisdiction  of  the  United  States,  so  far  as  foreign  powers  are 
concerned,  was  the  subject  of  judicial  determination  by  the 
Supreme  Court  in  1850  in  the  case  of  Fleming  vs.  Page,  which 
involved  the  right  of  the  Federal  Government  to  collect  duties 
on  merchandise  brought  from  Tampico,  Mexico,  while  that 
port  was  occupied  by  the  American  forces  during  the  Mexi- 
can War.  The  case  differs  materially  from  those  now  pend- 
ing before  the  Supreme  Court  in  regard  to  the  imposition  of 
duties  on  goods  brought  from  the  Philippines  and  Porto  Rico, 
in  that  Tampico  was  not  included  in  the  cession  made  by 
Mexico  in  1848,  but  was  restored  to  Mexico  by  the  withdrawal 


§102. 

1  U.  S.  Customs  Regulatious,  p. 
364,  edition  1892. 


2  Stairs  vs.  Peaslee,  U.  S.  Sup. 
Ct.  1855,  18  Howard,  r)21;  page  526, 
Taney,  (Jh.  J. 

167 


§  104  TREATY-MAKING  POWER  OF  THE  U.  S.         [cH.  lii. 

of  the  American  forces  after  the  Treaty  of  Peace  bad  been 
ratified. 

§  104.  Fleming  vs.  Page ;  The  Tainpico  Duty  case ;  Chief 
Justice  Taney's  opinion. —The  Supreme  Coui-i  in  tbis  case 
sustained  tbe  rigbt  of  tbe  United  States  to  collect  duties  on 
goods  brought  from  Tampico  on  tbe  ground  that  the  mere 
conquest  and  occupation  of  territorj'^  by  tbe  military  forces 
of  the  United  States  did  not  extend  the  boundaries  of  the 
Union  in  such  manner  as  to  make  the  conquered  territory  an 
actual  part  of  the  Union  ;  in  regard  to  the  effect  of  such  con- 
quest as  between  the  United  States  and  any  foreign  powers 
the  opinion  says  :  ^ 

"  It  is  true,  that,  when  Tampico  bad  been  captured,  and  the 
State  of  Tamaulipas  subjugated,  other  nations  were  bound  to 
regard  the  country,  while  our  possession  continued,  as  the 
territory  of  the  United  States,  and  to  respect  it  as  such.  For, 
by  the  laws  and  usages  of  nations,  conquest  is  a  valid  title, 


§104. 

^  Fleming  vs.  Page,  U.  S.  Sup.  Ct, 
1850,  9  Howard,  603,  p.  615,  Taney, 
Ch.  J. 

Secretary  of  State  Buchanan,  on 
October  7,  1848,  prior  to  any  con- 
gressional action,  as  to  the  Mexican 
territory,  or  the  establishment  of 
collection  districts  therein,  wrote 
as  follows  in  regard  to  the  de  facto 
government  still  existing  in  Cali- 
fornia: "  This  government  de  facto 
will  of  course,  exercise  no  power  in- 
consistent with  the  provisions  of  the 
Constitution  of  the  United  States, 
which  is  the  supreme  law  of  the 
land.  For  this  reason  no  import 
duties  can  be  levied  in  California 
on  articles  the  growth,  produce,  or 
manufacture  of  the  United  States, 
as  no  such  duties  can  be  imposed 
in  any  other  part  of  our  Union  on 
the  products  of  California.  Nor  can 
new  duties  be  charged  in  Califor- 
nia upon  such  foreign  productions 
as  have  already  paid  duties  in  any 
of  our  ports  of  entry,  for  the  obvi- 

168 


ous  reason  that  California  is  within 
the  territory  of  the  United  States. 
I  shall  not  enlarge  upon  this  sub- 
ject, however,  as  the  Secretary  of 
the  Treasury  will  perform  that 
duty," 

Quoted  in  Cross  vs.  Harrison,  U. 
S.  Sup.  Ct.  1853,  Wayne,  J.,  16 
Howard,  164,  p.  185. 

The  same  rule  was  followed  with 
regard  to  Alaska,  as  appears  by 
various  circulars  from  the  Treas- 
ury Department  to  Collectors,  ab- 
stracts of  which  appear  un  pages 
10  and  20  of  the  Synopsis  of  Deci- 
sions for  1868,  from  the  latter  of 
which  it  appears  that  on  April  6, 
1868,  the  Collector  at  New  York 
was  notified  that  merchandise 
shipped  from  Alaska  after  June  20, 
1867,  the  date  of  the  ratification  of 
the  Treaty  with  Russia,  was  en- 
titled to  entry  free  of  duty;  the 
act  extending  the  laws  of  the 
United  States  to  Alaska  was  not 
passed  until  July  27,  18(58,  15  U,  S, 
Stat,  at  Large,  p,  240, 


CH.  in.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.   §  104 

while  the  victor  maintains  the  exclusive  possession  of  the  con- 
quered country.  The  citizens  of  no  other  nation,  therefore, 
had  a  right  to  enter  it  without  the  permission  of  the  Amer- 
ican authorities,  nor  to  hold  intercourse  with  its  inhabitants, 
nor  to  trade  with  them.  As  regarded  all  other  nations,  it 
was  a  part  of  the  United  States,  and  belonged  to  them  as  ex- 
clusively as  the  territory  included  in  our  established  bound- 
aries." The  opinion  then  continues  to  draw  a  distinction  be- 
tween the  effect  of  conquest  as  to  foreign  powers  and  as  to 
citizens  of  the  Union,  and  in  that  res[)ect,  it  says :  "  But  yet 
it  was  not  a  part  of  this  Union.  For  every  nation  which  ac- 
quires territory  by  treaty  or  conquest  holds  it  according  to 
its  own  institutions  and  laws.  And  the  relation  in  which 
the  port  of  Tampico  stood  to  the  United  States  while  it  was 
occupied  by  their  arms  did  not  depend  upon  the  laws  of  na- 
tions, but  upon  our  own  Constitution  and  acts  of  Congress. 
The  power  of  the  President  under  which  Tampico  and  the 
State  of  Tamaulipas  were  conquered  and  held  in  subjection 
was  simply  that  of  a  military  commander  prosecuting  a  war 
waged  against  a  public  enemy  by  the  authority  of  his  gov- 
ernment. And  the  country  from  which  these  goods  were 
imported  was  invaded  and  subdued,  and  occupied  as  the  ter- 
ritory of  a  foreign,  hostile  nation,  as  a  portion  of  Mexico, 
and  was  held  in  possession  in  order  to  distress  and  harass 
the  enemy.  While  it  was  occupied  by  our  troops,  they  were 
in  an  enemy's  country,  and  not  in  their  own  ;  the  inhabitants 
were  still  foreigners  and  enemies,  and  owed  to  the  United 
States  nothing  more  than  the  submission  and  obedience, 
sometimes  called  temporary  allegiance,  which  is  due  from  a 
conquered  enemy,  when  he  surrenders  to  a  force  which  he 
is  unable  to  resist.  But  the  boundaries  of  the  United  States, 
as  they  existed  when  war  was  declared  against  Mexico,  were 
not  extended  by  the  conquest ;  nor  could  they  be  regulated 
by  the  varying  incidents  of  war,  and  be  enlarged  or  dimin- 
ished as  the  armies  on  either  side  advanced  or  retreated. 
They  remained  unchanged.  And  every  place  which  was 
out  of  the  limits  of  the  United  States,  as  previously  estab- 
lished by  the  political  authorities  of  the  government,  was 
still  foreign  ;  nor  did  our  laws  extend  over  it.  Tampico 
was,  therefore,  a  foreign  port  when  this  shipment  was  made. 

169 


§  10-4  TREATY-MAKING  POWER  OP  THE  U.  S.        [CH.  UI. 

"  Again,  there  was  no  act  of  Congress  establishing  a  custom 
house  at  Tainpico,  nor  authorizing  the  appointment  of  a  col- 
lector ;  and,  consequently,  there  was  no  officer  of  the  United 
States  authorized  by  law  to  grant  the  clearance  and  authen- 
ticate the  coasting  manifest  of  the  cargo,  in  the  manner  di- 
rected by  law,  where  the  voyage  is  from  one  port  of  the 
United  States  to  another.  The  person  who  acted  in  the  char- 
acter of  collector  in  this  instance,  acted  as  such  under  the 
authority  of  the  military  commander,  and  in  obedience  to 
his  orders ;  and  the  duties  he  exacted,  and  the  regulations 
he  adopted,  were  not  those  prescribed  by  law,  but  by  the 
President  in  his  character  of  commander-in-chief.  The  cus- 
tom house  was  established  in  an  enemy's  country,  as  one  of 
the  weapons  of  war.  It  was  established,  not  for  the  purpose 
of  giving  to  the  people  of  Tamaulipas  the  benefits  of  com- 
merce with  the  United  States,  or  with  other  countries,  but 
as  a  measure  of  hostility,  and  as  a  part  of  the  military  opera- 
tions in  Mexico ;  it  was  a  mode  of  exacting  contributions 
from  the  enemy  to  support  our  army,  and  intended  also  to 
cripple  the  resources  of  Mexico,  and  make  it  feel  the  evils 
and  burdens  of  the  war.  The  duties  required  to  be  paid 
were  regulated  with  this  view,  and  were  nothing  more  than 
contributions  levied  u]5on  the  enemy,  which  the  usages  of 
war  justify  when  an  army  is  operating  in  the  enemy's 
country.  The  permit  and  coasting  manifest  granted  by  an 
officer  thus  appointed,  and  thus  controlled  by  military  au- 
thority, could  not  be  recognized  in  any  port  of  the  United 
States,  as  the  documents  required  by  the  act  of  Congress 
when  the  vessel  is  engaged  in  the  coasting  trade,  nor  could 
they  exempt  the  cargo  from  the  payment  of  duties. 

"This  construction  of  the  revenue  laws  has  been  uniformly 
given  by  the  administrative  department  of  the  government 
in  every  case  that  has  come  before  it.  And  it  has,  indeed, 
been  given  in  cases  where  there  appears  to  have  been  stronger 
ground  for  regarding  the  place  of  shipment  as  a  domestic 
port.  For  after  Florida  had  been  ceded  to  the  United  States, 
and  the  forces  of  the  United  States  had  taken  possession  of 
Pensacola,  it  was  decided  by  the  Treasury  Department,  that 
goods  imported  from  Pensacola  before  an  act  of  Congress 
was  passed  erecting  it  into  a  collection  district,  and  author- 
170 


CH.  III.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.    §  105 

izing  the  appointment  of  a  collector,  were  liable  to  duty. 
That  is,  that  although  Florida  had,  by  cession,  actually  be- 
come a  part  of  the  United  States,  and  was  in  our  possession, 
yet,  under  our  revenue  laws,  its  ports  must  be  regarded  as 
foreign  until  they  were  established  as  domestic,  by  act  of 
Congress ;  and  it  appears  that  this  decision  was  sanctioned 
at  the  time  by  the  Attorney-General  of  the  United  States, 
the  law  oiScer  of  the  government.  And  although  not  so 
directly  applicable  to  the  case  before  us,  yet  the  decisions  of 
the  Treasury  Department  in  relation  to  Amelia  Island,  and 
certain  ports  in  Louisiana,  after  that  province  had  been  ceded 
to  the  United  States,  were  both  made  upon  the  same  grounds. 
And  in  the  latter  case,  after  a  custom-house  had  been  estab- 
lished by  law  at  New  Orleans,  the  collector  at  that  place 
was  instructed  to  regard  as  foreign  ports  Baton  Eouge  and 
other  settlements  still  in  the  possession  of  Spain,  whether  on 
the  Mississippi,  Iberville,  or  the  sea-coast.  The  Department 
in  no  instance  that  we  are  aware  of,  since  the  establishment 
of  the  government,  has  ever  recognized  a  place  in  a  newly 
acquired  country  as  a  domestic  ])ort,  from  which  the  coast- 
ing trade  might  be  carried  on,  unless  it  had  been  previously 
made  so  by  act  of  Congress." 

§  105.  The  position  reversed ;  the  "  Castine  "  Case ;  War 
of  1812;  Justice  Story's  opiniou — In  deciding  the  Tam- 
pico  case  the  Supreme  Court  adopted  the  reverse  position,  al- 
though under  the  reversed  conditions  it  was  consistent,  to  that 
which  it  had  taken  as  to  the  status  of  American  territory, 
conquered  and  occupied,  by  British  forces,  during  the  War 
of  1812,  and  subsequently  surrendered  pursuant  to  the  Treaty 
of  Peace  executed  at  Ghent  on  the  conclusion  of  that  War. 
The  port  of  Castine,  Maine,  was  captured  by  the  British 
forces;  during  the  period  of  conquest  goods  were  imported 
into  the  port ;  owing,  however,  to  the  occupation  by  the  Brit- 
ish troops  no  duties  were  collected  thereon  by  the  United 
States  custom  authorities ;  after  the  war  actions  were  com- 
menced by  the  United  States  for  the  unpaid  duties ;  the  Su- 
preme Court  held  that  so  far  as  the  execution  of  the  laws  of 
the  United  States  were  concerned,  the  territory  ceased,  for 
the  time  being,  to  be  under  the  jurisdiction  of  the  United 
States,  and  merchants,  therefore,  were  not  obligated  to  pay 

171 


§  105  TREATY-MAKING  POWER  OF  THE  V.  S.       [CH.  III. 

duties  during  the  period  of  occupation.     Mr.  Justice  Story 
says  in  his  opinion  :  ^ 

"  Under  these  circumstances,  we  are  all  of  opinion,  that 
the  claim  for  duties  cannot  be  sustained.  By  the  conquest 
and  military  occupation  of  Castine,  the  enemy  acquired  that 
firm  possession  which  enabled  him  to  exercise  the  fullest 
rights  of  sovereignty  over  that  place.  The  sovereignty  of 
the  United  States  over  the  territory  was,  of  course,  sus- 
pended, and  the  laws  of  the  United  States  could  no  longer 
be  rightfully  enforced  there,  or  be  obligatory  upon  the  in- 
habitants who  remained  and  submitted  to  the  conquerors. 
By  the  surrender  the  inhabitants  passed  under  a  temporary 
allegiance  to  the  British  government,  and  were  bound  by 
such  laws,  and  such  onl}^  as  it  chose  to  recognize  and  im- 
pose. From  the  nature  of  the  case,  no  other  laws  could  be 
obligatory  upon  them,  for  where  there  is  no  protection  or 
allegiance  or  sovereignty,  there  can  be  no  claim  to  obedience. 
Castine  was,  therefore,  during  this  period,  so  far  as  respected 
our  revenue  laws,  to  be  deemed  a  foreign  port ;  and  goods 
imported  into  it  by  the  inhabitants,  were  subject  to  such 
duties  only  as  the  British  government  chose  to  require.  Such 
goods  were  in  no  correct  sense  imported  into  the  United 
States.  The  subsequent  evacuation  by  the  enemy,  and  re- 
sumption of  authority  by  the  United  States,  did  not,  and 
could  not,  change  the  character  of  the  previous  transactions. 
The  doctrines  respecting  the  Jus  postliminii  are  wholly  inap- 
plicable to  the  case.  The  goods  were  liable  to  American 
duties,  when  imported,  or  not  at  all.  That  they  are  so  liable 
at  the  time  of  importation  is  clear  from  what  has  been  al- 
ready stated  ;  and  when,  upon  the  return  of  peace,  the  juris- 
diction of  the  United  States  was  re-assumed,  they  were  in 
the  same  predicament  as  they  would  have  been  if  Castine 
had  been  a  foreign  territory  ceded  by  treaty  to  the  United 
States,  and  the  goods  had  been  previously  imported  there. 
In  the  latter  case,  there  would  be  no  pretence  to  say  that 
American  duties  could  be  demanded ;  and,  upon  principles 
of  public  or  municipal  law,  the  cases  are  not  distinguishable. 

§  105.  I  Sup.     Ct.    1819,   4    Wheaton,  246, 

1  United   States  vs.  Bice,  U.   S.  |  p.  254,  Story,  J. 

172 


CH.  ni.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.    §  106 

The  authorities  cited  at  the  bar  would,  if  there  were  any 
doubt,  be  decisive  of  the  question.  But  we  thinlc  it  too  clear 
to  require  any  aid  from  authority." 

§  106.  Statusof  Cuba.— The  same  questions  that  arose  after 
the  War  of  1812,  and  the  Mexican  War,  have  arisen  not  onl}'- 
in  regard  to  the  territory  which  was  actually  ceded  by  Spain 
to  the  United  States,  but  also  in  regard  to  Cuba,  which  was 
not  ceded  to  the  United  States,  although  Spain  relinquished 
her  sovereignty  thereover,  the  United  States  assuming  by  the 
terms  of  the  treaty  the  obligations  arising  under  international 
law  by  reason  of  the  occupation  of  the  Island  by  the  mili- 
tary forces  of  this  country. 

What  the  internal  relations  of  the  United  States  and  Cuba 
m:iy  be  is  beyond  the  province  of  this  volume :  but  undoubt- 
edly, so  far  as  foreign-  relations  are  concerned,  the  decision 
of  the  Supreme  Court  in  Fleming  vs.  Page  is  directly  in 
point.  At  the  present  time  there  is  no  local  government 
of  Cuba,  and  if  any  question  should  arise  involving  foreign 
powers,  it  would  have  to  be  settled  through  the  medium  of 
the  United  States  Government,  as  the  military  forces  of  the 
United  States  are  in  occupation  of  the  Island.' 

§  106. 

iNOTE  AS  TO  STATUS  OF  CUBA. 

The  principal  executive,  congressional  and  judicial  precedents  relat- 
ing to  Cuba  and  the  status  thereof,  so  far  as  its  relations  with  the  United 
States  are  concerned  are:  (1)  The  Teller  resolution  of  April  20,  189S; 
(2)  the  stipulations  in  regard  to  Cuba  in  the  treaty  with  Spain  of  Decem- 
ber 10,  1898;  (3)  The  Foraker  Amendment  as  to  franchises  in  Cuba; 
(4)  the  executive  orders  relating  to  the  government  of  Cuba  and  the 
regulation  of  its  commerce,  as  promulgated  by  the  President  through 
the  War  Department;  (5)  the  decision  of  the  United  States  Supreme 
Court  in  the  case  of  Neely  vs.  Tlenkel,  in  regard  to  the  extradition  of 
Neely  under  the  statute  passed  in  regard  to  the  extradition  of  prisoners 
charged  with  crime  from  the  United  States  to  any  place  under  the  occu- 
pation of  the  military  forces  thereof;  (G)  the  Piatt  amenilment  in  regard 
to  the  relations  of  the  United  States  to  Cuba,  and  the  establishment 
thereof,  and  the  Cuban  constitution. 

The  documents  referred  to  will  be  given  in  order  below  with  the  ex- 
ception of  the  decision  in  Neely  vs.  Iletikd,  which  appears  as  a  footnote 
to  section  107,  post. 

1.    THE  TELLEB  RESOLUTION. 

"(No.  24.)  Joint  resolution  for  the  recognition  of  the  independence 
of  the  people  of  Cuba,  demanding  that  the  Government  of  Spain  relin- 

173 


§  107  TREATY-MAKIN-G  POWER  OF  THE  U.  S.        [CH.  III. 

§  107.  Status  of  Cuba  involved  in  tlie  Neely  case ;  ex- 
tradition.— The  status  of  Cuba  was  involved  and  determined 

quish  its  authority  and  government  in  the  Island  of  Cuba,  and  to  with- 
draw its  laud  and  naval  forces  from  Cuba  and  Cuban  waters,  and  direct- 
ing the  President  of  the  United  States  to  use  the  land  and  naval  forces 
of  the  United  States  to  carry  these  resolutions  into  effect. 

"  Whereas  the  abhorrent  conditions  which  have  existed  for  more  than 
three  years  in  the  Island  of  Cuba,  so  near  our  own  borders,  have  shocked 
the  moral  sense  of  the  people  of  the  United  States,  have  been  a  disgiace 
to  Christian  civilization,  culminating,  as  they  have,  in  the  destruction  of 
a  United  States  battleship,  with  two  hundred  and  sixty-six  of  its  officers 
and  crew,  while  on  a  friendly  visit  in  the  harbor  of  Ha%'ana,  and  cannot 
longer  be  endured,  as  has  been  set  forth  by  the  Pi-esident  of  the  United 
States  in  his  message  to  Congress,  of  April  eleventh,  eighteen  hundred 
and  ninety-eight,  upon  which  the  action  of  Congress  was  invited: 
Therefore, 

'■'■  Reaohed  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  First.  That  the  people  of  the 
Island  of  Cuba  are,  and  of  right  ought  to  be,  free  and  independent. 

"  Second.  That  it  is  the  duty  of  the  United  States  to  demand,  and  the 
Government  of  the  United  States  does  hereby  demand,  that  the  Govern- 
ment of  Spain  at  once  relinquish  its  authority  and  government  in  the 
Island  of  Cuba  and  withdraw  its  land  and  naval  forces  from  Cuba  and 
Cuban  waters. 

"  Third.  That  the  President  of  the  United  States  be,  and  he  hereby  is, 
directed  and  empowered  to  use  the  entire  laud  and  naval  forces  of  the 
Ignited  States,  and  to  call  into  the  actual  service  of  the  United  States  the 
militia  of  the  several  States,  to  such  extent  as  may  be  necessary  to  carry 
these  resolutions  into  efEect. 

"  Fourth.  That  the  United  States  hereby  disclaims  any  disposition  or 
intention  to  exercise  sovereignty,  jurisdiction,  or  control  over  said  Island 
except  for  the  pacification  thereof,  and  asserts  its  determination,  when 
that  is  accomplished,  to  leave  the  government  and  control  of  the  Island 
to  its  people." 

"Approved,  April  20,  1898."  (U.  S.  Stat,  at  Large,  Vol.  30,  pp.  738- 
739.) 

2.    STIPULATIONS  AS  TO  CUBA  IN  TREATY  WITH  SPAIN,  1898. 

"  Article  I.  Spain  relinquishes  all  claim  of  sovereignty  over  and  title 
to  Cuba. 

"  And  as  the  Island  is,  upon  its  evacuation  by  Spain,  to  be  occupied  by 
the  United  States,  the  United  States  will,  so  long  as  such  occupation 
shall  last,  assume  and  discharge  the  obligations  that  may  under  inter- 
national law  result  from  the  fact  of  its  occupation,  for  the  protection  of 
life  and  property." 

"  Article  XVI.  It  is  understood  that  any  obligations  assumed  in  this 
treaty  by  the  United  States  with  respect  to  Cuba  are  limited  to  the  time 
of  its  occupancy  thereof;  but  it  will,  upon  the  termination  of  such  oc- 

174 


CH.  UI.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.    §  107 

in  decisions  alread}^  made  by  the  Circuit  Courts  of  the  United 
States,  and  is  also  involved  in  questions  whicli  have  been  sub- 
mitted to  the  Supreme  Court. 

cupancy,  advise  any  Government  established  in  the  island  to  assume  the 
same  obligations."     30  U.  S.  Stat,  at  Large,  1754-1761. 

3.    THE  FOKAKER  AMENDMENT  AS  TO  FRANCHISES  IN  CUBA. 

Chap.  423  (army  appropriation  bill),  5.5th  Congress,  Sess.  Ill,  ap- 
proved March  3,  1899:  "  §  2,  That  no  property,  franchises,  or  conces- 
sions of  any  kind  whatever  shall  be  granted  by  the  United  States,  or  by 
any  military  or  other  authority  vphatever,  in  the  Island  of  Cuba  during 
the  occupation  thereof  by  the  United  States."  30  U.  S.  Stat,  at  Large, 
1064,  p.  1074. 

4.  EXECUTIVE  OBDEKS  BELATING  TO  CUBA. 

Immediately  after  the  exchange  of  the  treaty  of  peace  and  even  prior 
to  its  ratification,  Spain  withdrew  from  Cuba  and  relinquished  all 
sovereignty  thereover.  The  formal  act  took  place  on  January  1,  1890, 
and  on  that  day  the  Military  Governor,  Major  General  John  R.  Brooke, 
U.  S.  A.,  appointed  by  the  President  of  the  United  States,  assumed  con- 
trol of  the  Island. 

The  best  synopsis  of  tbe  orders  issued  by  the  Military  Governor,  and 
the  method  of  administering  the  affairs  of  the  Island  of  Cuba  will  be 
found  in  the  civil  report  of  Major  General  John  R.  Brooke,  October  1, 
1899,  published  by  the  War  Department,  Washington,  1900;  special  at- 
tention is  called  to  the  report  of  Major  Edgar  S.  Dudley,  Judge-Advo- 
cate, U.  S.  v., — Judge-Advocate  for  the  Division  of  Cuba,  September  30, 
1899, — pages  163  et  seq.  of  Major  General  Brooke's  report,  and  to  the  lists 
and  synopses  of  military  orders  at  pages  167,  et  seq.,  and  429,  et  seq.  of 
the  same  volume. 

These  orders  show  that  up  to  this  time  Cuba  is  under  a  strictly  mili- 
tary government,  and  that  both  as  to  military  and  civil  jurisdiction  the 
authority  of  the  commander  in  the  field  is  practically  supreme.  The 
orders  are  promulgated  by  the  Military  Governor  and  are  as  a  general 
rule  formulated  as  to  all  matters  of  importance  at  Washington  by  the 
War  Department.  The  rules  of  international  law  ns  to  military  occu- 
pancy control  the  relation  of  the  United  States  with  Cuba,  and  the  Presi- 
dent as  Commander  in  Chief  is  supreme  in  power,  acting,  as  must  nec- 
essarily be  the  case,  through  the  War  Department  and  the  Military  Gov- 
ernor. 

5.    DECISION  IN  NEELY  VS.  IIENKEL. 

See  note  A  to  §  107,  p.  178,  liost. 

6.   THE  PLATT  AMENDMENT  AS  TO  RELATIONS  WITH  CUBA. 

During  the  fall  of  1900,  General  Leonard  Wood,  Militiiry  Governor  of 
Cuba,  jn-oniulgated  an  order  permitting  the  people  of  Cuba  to  hold  a 
constitutional  convention:  That  convention  met  at  Havana  and  prepared 

175 


§  107  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  TH. 

Persons  charged  with  committing  crimes  in  Cuba,  and  who 
have  come  to  the  United  States,  have  been  arrested,  and  in 

a  proposed  constitution  for  Cuba.  It  ignored  the  relations  of  tlie  United 
States  witli  Cuba  and  accordingly,  prior  to  March  4,  1901,  when  Congress 
adjourned,  questions  arose  as  to  the  course  to  be  pursued  by  the  Presi- 
dent in  regard  to  withdrawing  the  United  States  troops  from  Cuba  if  a 
constitution  satisfactory  to  the  United  States  should  be  adopted.  The 
terms  upon  which  Congress  authorized  the  President  to  withdraw  the 
troops  were  formulated  in  a  series  of  resolutions  prepared  by  the  Hon- 
OBABLE  Orville  H.  Platt,  Senator  from  Connecticut,  and  offered  by 
him  in  the  Senate  on  February  27,  1901,  as  an  amendment  to  the  then 
pending  army  appropriation  bill.  They  were  adopted  and  incorpo- 
rated in  the  bill  and  subsequently  were  accepted  by  the  House,  and 
the  bill  thus  amended  became  a  law  by  approval  of  the  President  on 
March  2,  1901. 

The  amendment  as  adopted  is  as  follows: 

"  That  in  fulfillment  of  the  declaration  contained  in  the  joint  resolu- 
tion approved  April  20,  1898,  entitled,  'For  the  recognition  of  the  inde- 
pendence of  the  people  of  Cuba,  demanding  that  the  Government  of 
Spain  relinquish  its  authority  and  government  in  the  Island  of  Cuba,  and 
to  withdraw  its  land  and  naval  forces  from  Cuba  and  Cuban  waters,  and 
directing  tlie  President  of  the  United  States  to  use  the  land  and  naval 
forces  of  the  United  States  to  carry  these  resolutions  into  effect,'  the 
President  is  hereby  authorized  to  '  leave  the  government  and  control  of 
the  Island  of  Cuba  to  its  people  '  so  soon  as  a  government  shall  have  been 
established  in  said  island  under  a  constitution  wliich,  either  as  a  part 
thereof  or  in  any  ordinance  appended  thereto,  shall  define  the  future 
relations  of  the  United  States  with  Cuba,  substantially  as  follows: 

"  I.  That  the  government  of  Cuba  shall  never  enter  into  any  treaty  or 
other  compact  with  any  foreign  power  or  powers  which  will  impair  or 
tend  to  impair  the  independence  of  Cuba,  nor  in  any  manner  authorize 
or  permit  any  foreign  power  or  powers  to  obtain  by  colonization  or  for 
military  or  naval  purposes  or  otherwise,  lodgment  in,  or  control  over 
any  portion  of  snid  island. 

"II.  That  said  government  shall  not  assume  or  contract  any  public 
debt,  to  pay  the  interest  upon  which,  and  to  make  reasonable  sinking 
fund  provision  for  the  ultimate  discharge  of  wliich,  the  ordinary  revenues 
of  the  islands,  after  defraying  the  current  expenses  of  Government,  shall 
be  inadequate. 

"  III.  That  the  government  of  Cuba  consents  that  the  United  States 
may  exercise  the  right  to  intervene  for  the  preservation  of  Cuban  inde- 
pendence, the  maintenance  of  a  government  adequate  for  the  protectiim 
of  life,  property,  and  individual  liberty,  and  for  discharging  the  obliga- 
tions with  respect  to  Cuba  imposed  by  the  treaty  of  Paris  on  the  United 
States,  now  to  be  assumed  and  imdertaken  by  the  government  of  Cuba. 
"  IV.  That  all  Acts  of  the  United  States  in  Cuba  during  its  military  oc- 
cupancy thereof  are  ratified  and  validated,  and  all  lawful  rights  ac- 
quired thereunder  shall  be  maintained  and  protected. 

176 


CH.  III.]    SOVEREIGNTY  OF  F.  S.  AND  OTHER  POWERS.    §  107 

some  cases  transferred  to  Cuba,  while  in  others  (notably  in 
the  case  of  one  Neely)  the  right  of  the  government  to  trans- 
fer or  extradite  them  from  places  in  the  United  States  to 
Cuba  was  challenged  and  submitted  to  the  Supreme  Court. 

In  the  case  of  Neely,  who  was  about  to  be  transferred  to 
Cuba  under  an  act  of  Congress  specially  passed  for  that  pur- 
pose, Justice  Lacombe  refused  to  release  him  on  habeas  cor- 

"  V.  That  the  goverument  of  Cuba  will  execute,  and  as  far  as  necessary 
extend,  the  plans  already  devised  or  other  plans  to  be  mutually  agreed 
upon,  for  the  sanitation  of  the  cities  of  the  island,  to  the  end  that  a  re- 
currence of  epidemic  and  infectious  diseases  may  be  prevented,  thereby 
assuring  protection  to  the  people  and  commerce  of  Cuba,  as  vpell  as  to 
the  commerce  of  the  southern  ports  of  the  United  States  and  the  peo- 
ple residing  therein. 

"  VI.  That  the  Isle  of  Pines  shall  be  omitted  from  the  proposed  consti- 
tutional boundaries  of  Cuba,  the  title  thereto  being  left  to  future  adjust- 
ment by  treaty. 

"  VII.  That  to  enable  the  United  States  to  maintain  the  independence 
of  Cuba,  and  to  protect  the  people  thereof,  as  well  as  for  its  own  defense, 
the  government  of  Cuba  will  sell  or  lease  to  the  United  States  lands 
necessary  for  coaling  or  naval  stations  at  certain  specified  points,  to  be 
agreed  upon  with  the  President  of  the  United  States. 

"  VIII.  That  by  way  of  further  assurance,  the  government  of  Cuba 
will  embody  the  foregoing  provisions  in  a  permanent  treaty  with  the 
United  States." 

As  to  many  of  the  points  therein  contained  the  Piatt  amendment,  as 
it  is  called,  is  really  nothing  more  than  a  very  broad  construction  of  the 
Monroe  Doctrine  as  it  could  be  enunciated  in  regard  to  Cuba  even  if 
the  terms  of  the  Amendment  were  not  incorporated  in  the  Cuban  Con- 
stitution or  in  any  treaty.  The  United  States  having  expended  several 
hundred  million  dollars  in  relieving  both  Cuba  and  ourselves  from  the 
intolerable  condition  caused  by  the  misgovernment  of  Spain,  should 
certainly  have  the  right  before  withdrawing  from  Cuba  and  leaving  the 
inhabitants  of  that  island  to  govern  themselves,  to  properly  protect  the 
interests  of  the  United  States,  so  that  no  European  complications  can 
ever  again  arise  in  regard  to  that  Island,  which,  while  it  should  be  self- 
governed,  should  not  he  left  in  such  a  position  that  it  could  ngain  men- 
ace our  own  peace  and  safety,  or  require  our  intervention,  as  would  un- 
doubtedly be  the  case  if  it  were  permitted  to  make  treaties  with,  or  bor- 
row money  from,  European  governments.  To  the  author  it  seems  as 
though  Senator  Piatt  had,  witli  his  usual  good  sense  and  thorough  mas- 
tery of  international  and  constitutional  law,  formulated  in  the  amend- 
ment which  will  always  be  associated  with  his  name,  a  practical  and 
complete  .solution  of  the  whole  question.  Cuba  will  obtain  her  self- 
government,  and  the  United  States  will  be  relieved  from  fear  of  foreign 
complications,  and  at  the  snme  time  the  pledge  contained  in  the  Teller 
resolution  of  April  20,  1898,  will  be  fully  complied  with. 

12  177 


§107 


TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  lU. 


pus  proceedings  holding  that  the  United  States  had  power 
to  deal  with  the  extradition  questions  involved  as  Congress 
had  done  in  passing  the  act.  This  case  will  be  discussed  at 
greater  length  in  the  subsequent  sections  devoted  to  extra- 
dition cases ;  it  is  referred  to  here  simply  as  the  status  of 
Cuba.i 

Judge  Lacorabe  evaded  the  direct  question,  holding  the 
statute  which  Congress  had  passed  provided  for  exactly  such 
cases  and  was  within  the  constitutional  power  of  Congress.'^ 
In  the  Cox  case  in  Louisiana,  Judge  Duggan  held  in  Septem- 
ber, 1899,  before  the  passage  of  the  act,  that  for  purposes 
such  as  extradition,  a  requisition  of  the  military  governor  of 
Cuba  on  the  governor  of  a  state,  for  the  extradition  or  ren- 
dition of  a  person  charged  with  crime,  should  be  treated  in 
the  same  manner  as  though  the  requisition  came  from  the 
governor  of  a  territory.^  A 


§107. 

iSee  §§  432   et  seq.   chap.  XV, 
Vol.  II. 

2  103  Fed.  Rep.  626  and  631. 


3  See  opinion  in  full  in  brief  of 
Assistant  Attorney  General  Beck 
in  Xeely  case. 


A.    OPINION  OF  SUPREME  COURT  IN  CASE  OF  NEELY  VS.  HENKEL. 

Since  this  section  was  written  and  while  this  volume  was  in  press,  the 
Supreme  Court  has  decided  the  Neely  case.  The  opinion  was  delivered 
by  Mr.  Justice  Harlan  and  is  as  follows:  (180  U.  S.  Rep.  109) 

By  §  5270  of  the  Revised  Statutes  of  the  United  States  it  is  provided: 
"  Whenever  there  is  a  treaty  or  convention  for  extradition  between  the 
Government  of  the  United  States  and  any  foreign  government,  any  jus- 
tice of  the  Supreme  Court,  circuit  judge,  district  judge,  commissioner, 
authorized  so  to  do  by  any  of  the  courts  of  the  United  States,  or  judge 
of  a  court  of  record  of  general  jurisdiction  of  any  State,  may,  upon  com- 
plaint made  under  oath,  charging  any  person  found  within  the  limits 
of  any  State,  District,  or  Territory  with  having  committed  within  the 
jurisdiction  of  any  such  foreign  government  any  of  the  crimes  provided 
for  by  such  treaty  or  convention,  issue  his  warrant  for  the  apprehen- 
sion of  the  person  so  charged,  that  he  may  be  brought  before  such  jus- 
tice, judge  or  commissioner,  to  the  end  that  the  evidence  of  criminal- 
ity may  be  heard  and  considered.  If,  on  such  hearing,  he  deems  the 
evidence  sufficient  to  sustain  the  charge  under  the  provisions  of  the 
proper  treaty  or  convention,  he  shall  certify  the  same,  together  with  a 
copy  of  all  the  testimony  taken  before  him,  to  the  Secretary  of  State, 
that  a  warrant  may  issue  upon  the  requisition  of  the  proper  authorities 
of  such  foreign  government,  for  the  surrender  of  such  person  according 
to  the  stipulations  of  the  treaty  or  convention;  and  he  shall  issue  his 
178 


CH.  in.]    SOVEREIGNTY  OF  TJ.  S.  AND  OTHER  POWERS.    §  108 

§  108.  Uncertainty  as  to  Status  of  Cuba  from  internal 
standpoint. — It  will  thus  be  seen  that  the  present  status  of 

warrant  for  the  commitment  of  the  person  so  charged  to  the  proper 
jail,  there  to  remain  until  such  surrender  shall  be  made." 

This  section  was  amended  by  Congress  June  6tli,  1900,  by  adding 
thereto  the  following  proviso: 

"  Provided,  That  whenever  any  foreign  country  or  territory,  or  any 
part  thereof,  is  occupied  by  or  under  the  control  of  the  United  States,  any 
person  who  shall  violate,  or  who  has  violated,  the  criminal  laws  in 
force  therein,  by  the  commission  of  any  of  the  following  offenses,  namely: 
Mui'der,  and  assault  with  intent  to  commit  murder;  counterfeiting 
or  altering  money,  or  uttering  or  bringing  into  circulation  counterfeit 
or  altered  money;  counterfeitiag  certificates  or  coupons  of  public  in- 
debtedness, bank  notes,  or  other  instruments  of  public  credit,  and  the 
utterance  or  circulation  of  the  same;  forgery  or  altering,  and  uttering 
what  is  forged  or  altered;  embezzlement  or  criminal  malversation  of  the 
public  funds,  committed  by  pw'^iic  officers,  employes,  or  depositaries; 
larceny  or  embezzlement  of  an  amount  not  less  than  one  hundred  dol- 
lars in  value,  robbery ;  burglary,  defined  to  be  the  breaking  and  entering  by 
night-time  into  the  house  of  another  person  with  intent  to  commit  a  felony 
therein;  and  the  act  of  breaking  and  entering  the  house  or  building  of 
another,  whether  in  the  day  or  night-time,  with  the  intent  to  commit  a 
felony  therein;  the  actof  entering  or  of  breaking  and  entering  the  offices 
of  the  government  and  public  authorities,  or  the  offices  of  banks,  bank- 
ing houses,  savings  banks,  trust  companies,  insurance,  or  other  com- 
panies, with  the  intent  to  commit  a  felony  therein;  perjury  or  the  sub- 
ornation of  perjury;  rape;  arson;  piracy  by  the  law  of  nations;  murder, 
assault  with  intent  to  kill,  and  manslaughter,  committed  on  the  high 
seas,  on  board  a  ship  owned  by  or  in  control  of  citizens  or  residents  of 
such  foreign  country  or  territory  and  not  under  the  flag  of  the  United 
States,  or  of  some  other  government;  malicious  destruction  of  or  at- 
tempt to  destroy  railways,  trams,  vessels,  bridges,  dwellings,  public 
edifices  or  other  buildings,  when  the  act  endangers  human  life,  and 
who  shall  depart  or  flee,  or  who  has  departed  or  fled,  from  justice  therein 
to  the  United  States,  or  to  any  Territory  thereof,  or  to  the  District  of 
Columbia,  shall,  when  found  therein,  be  liable  to  arrest  and  detention 
by  the  authorities  of  the  United  States,  and  on  the  written  request  or 
requisition  of  the  military  governor  or  other  chUf  executive  officer  in  con- 
trol of  such  foreign  country  or  territory  shall  be  returned  and  surrendered 
as  hereinafter  i)rovided  to  such  authorities  for  trial  under  the  laws  in 
force  in  the  place  where  such  offense  was  committed.  All  the  provisions 
of  sections  fifty-two  hundred  and  seventy  to  fifty-two  hundred  and 
seventy-seven  of  this  title,  so  far  as  applicable,  shall  govern  proceedings 
authorized  by  this  proviso:  Provided  further.  That  such  proceedings 
shall  be  had  before  a  judge  of  the  courts  of  the  United  States  only,  ivho 
shall  hold  such  person  on  evidence  establishing  probable  cause  that  he  is 
guilty  of  the  offense  charged ;  And  provided  further,  That  no  return  or 
surrender  shall  be  made  of  any  person  charged  with  the  commission  of 

179 


§  108  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IH. 

Cuba  is  involved  in  many  legal  complications  and  that  no 
succinct  statement  as  to  its  exact  relations  to  the  United 

any  offense  of  a  political  nature.  If  so  held  such  person  shall  be  re- 
turned and  surrendered  to  the  authorities  in  control  of  such  foreign 
country  or  territory  on  the  order  of  the  Secretary  of  State  of  the  United 
States,  and  such  authorities  shall  secure  to  such  person  a  fair  and  im- 
partial trial."     31  Stat,  at  L.  656,  chap.  793. 

On  the  28th  day  of  June,  1900,  a  warrant  was  issued  by  Judge  La- 
corabe  of  the  Circuit  Court  of  the  United  States  for  the  Southern  Dis- 
trict of  New  York  commanding  the  arrest  of  Charles  F.  W.  Neely,  who, 
"being  then  and  there  a  public  employe,  to  wit.  Finance  Agent  of  the 
Department  of  Posts  in  the  city  of  Havana,  Island  of  Cuba,  on  the  6th 
day  of  May  in  the  year  of  our  Lord  one  thousand  nine  hundred,  or 
about  tliat  time,  having  tlien  and  there  charge  of  the  collection  and  de- 
posit of  moneys  of  the  Dejjartment  of  Posts  of  the  said  city  of  Havana, 
did  unlawfully  and  feloniously  take  and  embezzle  from  the  public  funds 
of  the  said  Island  of  Cuba,  the  sum  of  $10,000  and  more,  being  then  and 
there  moneys  and  funds  which  had  come  into  his  charge  and  under  his 
control  in  his  capacity  as  such  public  employe  and  finance  agent,  as 
aforesaid,  and  by  reason  of  his  said  office  and  employment,  thereby  vio- 
lating chapter  10,  article  401,  of  the  Penal  Code  of  the  said  Island  of  Cuba 
— that  is  to  say,  a  crime  within  the  meaning  of  the  said  act  of  Congress, 
approved  June  6th,  1900,  as  aforesaid,  relating  to  the  '  embezzlement  or 
criminal  malversation  of  the  public  funds  committed  by  public  officers, 
employes,  or  depositaries.'  "  The  warrant  directed  the  accused  to  be 
brought  before  the  judge  in  order  that  the  evidence  of  probable  cause 
as  to  his  guilt  could  be  heard  and  considered,  and,  if  deemed  sufficient, 
that  the  same  might  be  certified  with  a  copy  of  all  the  proceedings  to 
the  Secretary  of  State,  that  an  order  might  issue  for  his  return  and  sur- 
render pursuant  to  the  authority  of  the  above  act  of  Congress. 

The  warrant  of  arrest  was  based  on  a  verified  written  complaint  of 
an  Assistant  United  States  Attorney  for  the  Southern  District  of  New 
York. 

On  the  same  day  and  upon  a  like  complaint  a  warrant  was  issued 
against  Neely  by  the  same  judge,  commanding  his  arrest  for  the  crime 
of  having  unlawfully  and  fraudulently — while  employed  in  and  con- 
nected with  the  business  and  operations  of  a  branch  of  the  service  of 
the  Department  of  Posts  in  Havana,  Cuba,  between  July  1st,  1899,  and 
May  1st,  1900 — embezzled  and  converted  to  his  own  use  postage  stamps, 
moneys,  funds,  and  property  belonging  to  and  in  the  custody  of  that 
department,  which  had  come  into  his  custody  and  under  his  author- 
ity as  such  employe,  to  the  amount  of  $57,000,  in  violation  of  §§  37 
and  55  of  the  Postal  Code  of  Cuba. 

Neely  having  been  arrested  under  these  warrants,  application  was 
made  by  the  United  States  for  his  extradition  to  Cuba.  The  accused 
moved  to  dismiss  the  complaints  upon  various  grounds.  That  motion 
having  been  denied,  the  case  was  heard  upon  evidence.  In  disposing  of 
the  application  for  extradition,  Judge  Lacombe  said:  "In  the  opin- 

180 


CH.  III.J    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.    §  108 

States  or  as  to  its  own  status,  considered  in  connection  with 
the  legal  rights  of  its  inhabitants  can  be  formulated  at  the 

ion  of  this  court,  the  Government  has  abundantly  shown  that  there  is 
probable  cause  to  believe  that  Neely  is  guilty  of  the  offence  of  '  embez- 
zlement or  criminal  malversation  of  the  public  funds,'  be  being  at  that 
time  a  'public  officer,'  or  '  employe,'  or  'depositary.'  Such  an  offense 
is  obnoxious  to  the  Penal  Code  in  force  in  Cuba,  Article  401  of  which  pro- 
vides that  'the  public  employe  who,  by  reason  of  his  office,  has  in  his 
charge  public  funds  or  property,  and  who  should  take  (or  consent  that 
others  should  take)  any  part  therefrom,  shall  be  punished,'  etc.  There 
is  no  merit  in  the  contention  that  this  article  applies  only  to  persons  in 
the  public  employ  of  Spain.  Spain  having  withdrawn  from  the  island, 
its  successor  has  become  the  '  public'  to  which  the  Code,  remaining  unre- 
pealed, now  refers.  The  suggestion  that  under  this  Penal  Code  no  pub- 
lic employe  could  be  prosecuted  or  punished  until  his  superior  had 
heard  tlie  case  and  turned  the  offender  over  to  the  criminal  law  for  trial 
is  matter  of  defense,  and  need  not  be  considered  here.  The  evidence 
shows  probable  cause  to  believe  tiiat  the  prisoner  is  guilty  of  an  offense 
defined  in  the  act  of  June  6th,  1900,  and  .which  is  also  a  violation  of  the 
criminal  laws  in  Cuba,  and  upon  such  evidence  he  will  be  held  for  ex- 
tradition." But,  it  was  further  said:  "Two  obstacles  now  exist.  He 
[the  accused]  has  been  held  to  bail  in  this  court  upon  a  criminal  charge 
of  bringing  into  this  district  government  funds  embezzled  in  another 
district.  He  has  also  been  arrested  in  a  civil  action  brought  in  this  court 
to  recover  $45,000,  which,  it  is  alleged,  ho  has  converted.  When  both  of 
these  proceedings  have  been  discontinued,  the  order  in  extradition  will 
be  signed.     This  may  be  done  on  August  l.Sth  at  11  a.  m." 

Subsequently,  August  9th,  1900,  Neely  presented  in  the  court  below 
his  written  application  for  a  writ  of  hahean  corpus,  and  prayed  that  lie 
be  discharged  from  restraint  in  the  extradition  proceedings.  He  claimed 
on  various  grounds  that  the  act  of  June  6th,  1900,  under  which  he  was 
arrested,  detained  and  imprisoned  was  in  violation  of  the  Constitution 
of  the  United  States. 

The  application  for  the  writ  of  habeas  corpus  having  been  denied,  and 
an  appeal  having  been  duly  taken,  the  petitioner  was  remanded  to  the 
custody  of  the  marshal  to  await  the  determination  of  such  appeal  in 
this  court. 

1.  That  at  the  date  of  the  act  of  June  6th,  1900,  the  Island  of  Cuba 
was  "  occupied  by"  and  was  "  under  the  control  of  the  United  States," 
and  that  it  is  still  so  occupied  and  controlled,  cannot  be  disputed. 
This  court  will  take  judicial  notice  that  such  were,  at  the  date  named 
and  are  now,  the  relations  between  this  country  and  Cuba.  So  tiiat  tlie 
applicability  of  the  above  act  to  the  present  case— and  this  is  the  first 
question  to  be  examined— depends  upon  the  inquiry  wliether,  within 
its  meaning,  Cuba  is  to  be  deemed  ^.foreiga  country  or  territory. 

We  do  not  think  this  question  at  all  difficult  of  solution  if  regard  be 
had  to  the  avowed  objects  intended  to  be  accomplislied  by  the  war  with 
Spain  and  by  the  military  occupation  of  that  Island.     Let  us  see  what 

181 


§  108  TREATY-MAKING  POWER  OF  THE  V.  S.       [CH.  m. 

present  time.  The  counsel  in  the  Neely  case  have  argued 
before  the  Supreme  Court  that  Cuba  is  really  a  friendly  power 

■were  those  objects  as  they  are  disclosed  by  official  documents  and  by  the 
public  acts  of  the  representatives  of  the  United  States. 

On  the  20th  day  of  April,  1868,  Congress  passed  a  joint  resolution. 
( For  this  resolution  in  full  see  note  1  on  Status  of  Cuba  §  lOG,  p.  173,  ante. ) 

The  adoption  of  this  joint  resolution  was  followed  by  the  act  of  April 
25th,  1898,  by  which  Congress  declared:  "  1.  That  war  be,  and  the  same 
is,  hereby  declared  to  exist,  and  that  war  has  existed  since  the  21st  day 
of  April,  1898,  including  said  day,  between  the  United  States  of  Amer- 
ica and  the  Kingdon  of  Spain.  2.  That  the  President  of  the  United 
States  be,  and  he  hereby  is,  directed  and  empowered  to  use  the  entire  land 
and  naval  forces  of  the  United  States,  and  to  call  into  the  actual  ser- 
vice of  the  United  States  tlie  militia  of  the  several  states  to  such  extent 
as  may  be  necessary  to  carry  this  act  into  effect."  30  Stat,  at  L.  364, 
chap.  189. 

The  war  lasted  but  a  few  months.  The  success  of  the  American 
Arms  was  so  complete  and  overwhelming  that  a  Protocol  of  Agree- 
ment between  the  United  States  and  Spain  embodying  the  terms  of  a 
basis  for  the  establishment  of  peace  between  the  two  countries  was 
signed  at  Washington  on  the  12th  of  August,  1898.  By  that  agreement 
it  was  provided  that  "  Spain  will  relinquish  all  claim  of  sovereignty  over 
and  title  to  Cuba,"  and  that  the  respective  countries  would  each  ap- 
point commissioners  to  meet  at  Paris  and  there  proceed  to  the  negotia- 
tion and  conclusion  of  a  treaty  of  peace.     30  Stat,  at  L.  1742. 

Commissioners  possessing  full  authority  from  their  respective  Gov- 
ernments for  that  purpose  having  met  in  Paris,  a  treaty  of  peace  was 
signed  on  December  10th,  1898,  and,  ratifications  having  been  duly  ex- 
changed, it  was  proclaimed  April  11th,  1899.     30  Stat,  at  L.  1754. 

That  treaty  contained,  among  other  provisions,  the  following: 

(Articles  I  and  XVI  quoted  verbatim  as  in  note  1  on  Status  of  Cuba 
to  §  106,  p.  174,  ante. ) 

On  the  13th  of  December,  1898,  an  order  was  issued  by  the  Secretary 
of  War  stating  that,  by  direction  of  the  President,  a  division  to  be 
known  as  the  division  of  Cuba,  consisting  of  the  geographical  depart- 
ments and  provinces  of  the  Island  of  Cuba,  with  headquarters  at  Ha- 
vana, was  created  and  placed  under  the  command  of  Major  General  John 
R.  Brooke,  United  States  Army,  who  was  required,  in  addition  to  his 
command  of  the  troops  in  the  Division,  to  "exercise  the  authority  of 
Military  Governor  of  the  Island."  And  on  December  28th,  1898,  Gene- 
ral Brooke,  by  a  formal  order,  in  accordance  with  the  order  of  the  Pres- 
ident, assumed  command  of  that  division,  and  announced  that  he  would 
exercise  the  authority  of  Military  Governor  of  the  Island. 

On  the  1st  day  of  January,  1899,  at  tlie  palace  of  the  Spanish  Governor- 
General  in  Havana,  the  sovereignty  of  Spain  was  formally  relinquished 
and  General  Brooke  immediately  entered  upon  the  full  exercise  of  his 
duties  as  Military  Governor  of  Cuba. 

Upon  assuming  the  positions  of  Military  Governor  and  Major  General 

182 


CH.  III.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.  §  108 

and  that  the  occupation  of  the  United  States  is  improper, 
illegal  and  unwarranted  by  the  Constitution  ;  inasmuch,  how- 
commanding  the  Division  of  Cuba,  General  Brooke  issued  to  the  People 
of  Cuba  the  following  i^roclamation: 

"  Coming  among  you  as  the  representative  of  the  President,  in  fur- 
therance and  in  continuation  of  the  humane  purpose  with  which  my 
country  interfered  to  pat  an  end  to  the  distressing  condition  in  this  is- 
land, I  deem  it  proper  to  say  that  the  object  of  the  present  Government 
is  to  give  protection  to  the  people,  security  to  persons  and  property,  to 
restore  confidence,  to  encourage  the  people  to  resume  the  pursuits  of 
peace,  to  build  up  waste  plantations,  to  resume  commercial  traffic,  and 
to  afford  full  protection  in  the  exercise  of  all  civil  and  religious  rights. 
To  this  end,  the  protection  of  the  United  States  government  will  be  di- 
rected, and  every  possible  provision  made  to  carry  out  these  objects 
through  the  channels  of  civil  administration,  although  under  military 
control,  in  the  interest  and  for  the  benefit  of  all  the  people  of  Cuba, 
and  those  possessed  of  rights  and  property  in  the  island.  The  civil  and 
criminal  code  which  prevailed  prior  to  the  relinquishment  of  Spanish 
sovereignty  will  remain  in  force,  with  such  modifications  and  changes 
as  may  from  time  to  time  be  found  necessary  in  the  interest  of  good 
government.  The  people  of  Cuba,  without  regard  to  previous  affilia- 
tions, are  invited  and  urged  to  co-operate  in  these  objects  by  the  exer- 
cise of  moderation,  conciliation,  and  good-will  one  toward  another  and 
a  hearty  accord  in  our  humanitarian  purposes  will  insure  kind  and  be- 
neficent government.  The  Military  Governor  of  the  island  will  always 
be  pleased  to  confer  with  those  who  may  desire  to  consult  him  on  mat- 
ters of  public  interest." 

On  the  11th  day  of  January,  1899,  the  Military  Governor,  "  in  pursu- 
ance of  the  authority  vested  in  him  by  the  President  of  the  United 
States,  and  in  order  to  secure  a  better  organization  of  the  civil  service 
in  the  Island  of  Cuba,"  ordered  that  thereafter  "the  civil  government 
shall  be  administered  by  four  Departments,  each  under  the  charge  of  its 
appropriate  Secretary,"  to  be  known,  respectively,  as  the  Departments 
of  State  and  Government,  of  Finance,  of  Justice  and  Public  Instruction, 
and  of  Agriculture,  Commerce,  Industries  and  Public  Works,  each  under 
the  charge  of  a  Secretary.  To  these  Secretaries  "  were  transferred,  by 
the  officers  in  charge  of  them,  the  various  bureaus  of  the  Spanish  civil 
government."  Subsequently,  by  order  of  the  Military  Governor,  a  Su- 
preme Court  for  the  island  was  created,  with  jurisdiction  throughout 
Cuban  territory,  composed  of  a  President  or  Chief  Justice,  six  Associate 
Justices,  one  Fiscal,  two  Assistant  Fiscals,  one  Seci'etary  or  Chief  Clerk, 
two  Deputy  Clerks,  and  other  subordinate  employes,  with  administra- 
tive functions,  as  well  as  those  of  a  court  of  justice  in  civil  and  crimi- 
nal matters.  By  order  of  a  later  date,  issued  by  the  Military  (luvernor, 
the  jurisdiction  of  the  ordinary  courts  of  criminal  jurisdiction  was  de- 
fined. 

Under  date  of  July  21st,  1899,  by  direction  of  the  Military  Governor, 
a  code  known  as  the  Postal  Code  was  promulgated  and  declared  to  be 

183 


§  108  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  HI. 

ever,  as  there  is  a  de  facto  occupation  it  is  exceedingly  doubt- 
ful whether  the  Supreme  Court  will  investigate  the  legal 

the  law  relating  to  postal  affairs  in  Cuba.  That  Code  abrogated  all 
laws  then  existing  in  Cuba  incousistent  with  its  provisions.  It  pro- 
vided that  the  director  general  of  Posts  of  the  Island  should  have  the 
control  and  management  of  the  Department  of  Posts,  and  prescribed 
numerous  criminal  offenses,  affixing  the  punishments  for  each.  It  is 
not  disputed  that  one  of  the  offenses  charged  against  Neely  is  included 
in  those  defined  in  the  Postal  Code  established  by  the  Military  Governor 
of  Cuba,  and  that  the  other  is  embraced  by  the  Penal  Code  of  that 
Island  which  was  in  force  when  the  war  ensued  with  Spain,  and  which 
by  order  of  the  Military  Governor  remained  in  force,  subject  to  such 
modifications  as  might  be  found  necessary  in  the  interest  of  good  gov- 
ernment. 

On  the  13th  day  of  June,  1900,  the  present  Military  Governor  of  Cuba, 
General  Leonard  Wood,  made  his  requisition  upon  the  President  for 
the  extradition  of  Neely  under  the  act  of  Congress. 

The  facts  above  detailed  make  it  clear  that  within  the  meaning  of 
the  act  of  June  6th,  1900,  Cuba  is  foreign  territoi-y.  It  cannot  be  re- 
garded, in  any  constitutional,  legal  or  international  sense,  a  part  of 
the  territory  of  the  United  States. 

While  by  the  act  of  April  25th,  1898,  declaring  war  between  this 
country  and  Spain,  the  President  was  directed  and  empowered  to  use 
our  entire  land  and  naval  forces,  as  well  as  the  militia  of  the  several 
States  to  such  extent  as  was  necessary,  to  carry  such  act  into  effect,  that 
authorization  was  not  for  the  purpose  of  making  Cuba  an  integral  part 
of  the  United  States  but  only  for  the  purpose  of  compelling  the  relin- 
quishment by  Spain  of  its  authority  and  government  in  that  Island  and 
the  withdrawal  of  its  forces  from  Cuba  and  Cuban  waters.  The  legis- 
lative and  executive  branches  of  the  government,  by  the  joint  resolu- 
tion of  April  20th,  1898,  expressly  disclaimed  any  purpose  to  exercise 
sovereignty,  jurisdiction  dr  control  over  Cuba  "except  for  the  pacifi- 
cation thereof,"  and  asserted  the  determination  of  the  United  States, 
that  object  being  accomplished,  to  leave  the  government  and  control  of 
Cuba  to  its  own  people.  All  that  has  been  done  in  relation  to  Cuba 
has  had  that  end  in  view  and,  so  far  as  the  court  is  informed  by  the 
public  history  of  the  relations  of  this  country  with  that  Island,  nothing 
has  been  done  inconsistent  with  the  declared  object  of  the  war  with 
Spain. 

Cuba  is  none  the  less  foreign  temtory,  within  the  meaning  of  the  act 
of  Congress,  because  it  is  under  a  Military  Governor  appointed  by  and 
representing  the  President  in  the  work  of  assisting  the  inhabitants  of 
that  island  to  establish  a  government  of  their  own,  under  wliich,  as  a 
free  and  independent  people,  they  may  control  their  own  affairs  with- 
out interference  by  other  nations.  The  occupancy  of  the  Island  by 
troops  of  the  United  States  was  the  necessary  result  of  the  war.  That 
result  could  not  have  been  avoided  by  the  United  States  consistently 

184 


CH.  in.]    SOVEREIGNTY  OP  U.  S.  AND  OTHER  POWERS.    §  108 

status  of  such  occupation  ;  it  is  the  author's  view,  although 
it  may  be  prematurely  expressed,  that  the  Supreme  Court 

with  the  principles  of  international  law  or  with  its  obligations  to  the 
people  of  Cuba. 

It  is  true  that  as  between  Spain  and  the  United  States — indeed,  as 
between  the  United  States  and  all  foreign  nations — Cuba,  upon  the  ces- 
sation of  hostilities  with  Spain  and  after  the  treaty  of  Paris,  was  to  be 
treated  as  if  it  were  conquered  territory.  But  as  between  the  United 
States  and  Cuba  that  Island  is  territory  held  in  trust  for  the  inhabitants 
of  Cuba,  to  whom  it  rightfully  belongs,  and  to  whose  exclusive  control 
it  will  be  surrendered  when  a  stable  government  shall  have  been  estab- 
lished by  their  voluntary  action. 

In  his  message  to  Congress,  of  December  6th,  1898,  the  President  said 
that  "as  soon  as  we  are  in  possession  of  Cuba  and  have  pacified  the  Is- 
land, it  will  be  necessary  to  give  aid  and  direction  to  its  people  to  form 
a  government  for  themselves,"  and  that,  "  until  there  is  complete  tran- 
quillity in  the  Island  and  a  stable  government  inaugurated,  military  oc- 
cupation will  be  continued."  Nothing  in  the  treaty  of  Paris  stands  in 
the  way  of  this  declared  object,  and  nothing  existed,  at  the  date  of  the 
passage  of  the  act  of  June  6th,  1900,  indicating  any  change  in  the  policy 
of  our  Govei-nraent  as  defined  in  the  joint  resolution  of  April  20th, 
1898.  In  reference  to  the  declaration  in  that  resolution,  of  the  pur- 
poses of  the  United  States  in  relation  to  Cuba,  the  President  in  his  an- 
nual message  of  December  5th,  1899,  said  that  the  pledge  contained  in 
it  "is  of  the  highest  honorable  obligation,  and  must  be  sacredly  kept." 
Indeed,  the  treaty  of  Paris  contemplated  only  a  temporary  occupancy 
and  control  of  Cuba  by  the  United  States.  While  it  was  taken  for 
granted  by  the  treaty  that,  upon  the  evacuation  by  Spain,  the  island 
would  be  occupied  by  the  United  States,  the  treaty  provided  that,  "so 
long  as  such  occupation  shall  last  "  the  United  States  should  "  assume 
and  discharge  the  obligations  that  may,  under  international  law,  result 
from  the  fact  of  its  occupation  for  the  protection  of  life  and  property." 
It  further  provided  that  any  obligations  assumed  by  the  United  States, 
under  the  treaty,  with  respect  to  Cuba,  were  "limited  to  the  time  of 
its  occupancy  thereof,"  but  that  the  United  States,  upon  the  termina- 
tion of  such  occupancy,  should  "advise  any  government  established  in 
the  Island  to  assume  the  same  obligations." 

It  cannot  be  doubted  that  when  the  United  States  enforced  the  relin- 
quishment by  Spain  of  her  sovereignty  in  Cuba  and  determined  to  oc- 
cupy and  control  that  Island  until  there  was  complete  tranquillity  in  all 
its  borders  and  until  the  people  of  Cuba  had  created  for  themselves  a 
stable  government,  it  succeeded  to  the  authority  of  the  displaced  gov- 
ernment so  far  at  least  that  it  became  its  duty  under  international  law 
and  pending  the  pacification  of  the  Island,  to  protect  in  all  appropriate 
legal  modes  the  lives,  the  liberty,  and  the  property  of  all  those  who 
submitted  to  the  authority  of  the  representatives  of  this  country.  That 
duty  was  recognized  in  the  Treaty  of  Paris;  and  the  act  of  June  (Ith, 
1900,  so  far  as  it  applied  to  cases  arising  in  Cuba,  was  in  aid  or  execu- 

185 


§  108  TREATY-MAIONG  POWER  OF  THE  U.  S.         [CH.  III. 

will  hold  that  the  mere  fact  certihed  on  the  record  of  a  de 
facto  occupation  will  be  taken  as  evidence  of  the  fact,  and 

tion  of  that  treaty  and  in  discharge  of  the  obligations  imijosed  by  its 
provisions  upon  the  United  States.  The  power  of  Congress  to  make  all 
laws  necessary  and  proper  for  carrying  into  execution  as  well  the  pow- 
ers enumerated  in  §  8  of  aiticle  I.  of  the  Constitution,  as  all  others  vested 
in  the  Government  of  the  United  States,  or  in  any  Department  or  the  offi- 
cers thei'eof,  includes  the  power  to  enact  such  legislation  as  is  appro- 
priate to  give  efficacy  to  any  stipulations  which  it  is  competent  for  the 
President  by  and  with  the  advice  and  ccmsent  of  the  Senate  to  insert  in 
a  treaty  with  a  foreign  power.  What  legislation  by  Congress  could  be 
more  appropriate  for  the  protection  of  life  and  property  in  Cuba,  wbile 
occupied  and  controlled  by  the  United  States,  than  legislation  securing 
the  return  to  that  island,  to  be  tried  by  its  constituted  authorities,  of 
those  who,  having  committed  crimes  there,  fled  to  this  country  to  es- 
cape arrest,  trial  and  punishment?  No  crime  is  mentioned  in  the  ex- 
tradition act  of  June  6th,  1900,  that  does  not  have  some  relation  to  the 
safety  of  life  and  property.  And  the  provisions  of  that  act  requiring 
the  surrender  of  any  public  officer,  employe,  or  depositary  fleeing  to 
the  United  States  after  having  committed  in  a  foreign  country  or  ter- 
ritory occupied  by  or  under  the  control  of  the  United  States  the  crime 
of  "embezzlement  or  criminal  malversation  of  the  public  funds"  have 
special  application  to  Cuba  in  its  present  relations  to  this  country. 

We  must  not  be  understood,  however,  as  saying  that,  but  for  the  ob- 
ligation imposed  by  the  Treaty  of  Paris  upon  the  United  States  to  pro- 
tect life  and  property  in  Cuba  pending  its  occupancy  and  control  of 
that  island,  Congress  would  have  been  without  power  to  enact  such  a 
statute  as  that  of  June  6th,  1900,  so  far  as  it  embraced  citizens  of  the 
United  States  or  persons  found  in  the  United  States  who  had  commit- 
ted crimes  in  the  foreign  territory  so  occupied  and  controlled  by  the 
United  States  for  temporary  purposes.  That  question  is  not  open  on 
t^iis  record  for  examination,  and  upon  it  we  express  no  opinion.  It  is 
quite  sufficient  in  this  case  to  adjudge,  as  we  now  do,  that  it  was  com- 
petent for  Congress,  by  legislation,  to  enforce  or  give  efficacy  to  the 
provisions  of  the  treaty  made  by  the  United  States  and  Spain  with  re- 
spect to  the  Island  of  Cuba  and  its  people. 

II.  It  is  contended  that  the  act  of  Jtme  6th,  1900,  is  unconstitutional 
and  void  in  that  it  does  not  secure  to  the  accused,  when  surrendered  to 
a  foreign  country  for  trial  in  its  tribunals,  all  of  the  rights,  privileges, 
and  immunities  that  are  gtiaranteed  by  the  Constitution  to  persons 
charged  with  the  commission  in  this  country  of  crime  against  the 
United  States.  Allusion  is  here  made  to  the  provisions  of  the  Federal 
Constitution  relating  to  the  writ  of  habeas  corpus,  bills  of  attainder, 
ex  post  facto  laws,  trial  by  jury  for  crimes,  and  generally  to  the  funda- 
mental guaranties  of  life,  liberty  and  property  embodied  in  that  in- 
strument. The  answer  to  this  suggestion  is  that  those  provisions  have 
no  relation  to  crimes  committed  without  the  jurisdiction  of  the  United 
States  against  the  laws  of  a  foreign  country. 

186 


CH.  III.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.    §  108 

that  the  right  of  the  forces  to  occupy  the  territory  is  a  matter 
entirely  within  the  executive  and  political  departments  of 

In  connection  with  the  above  proposition,  we  are  reminded  of  the 
fact  that  the  appellant  is  a  citizen  of  the  United  States.     But  such  citi- 
zenship does  not  ^ive  him  an  immunity  to  commit  crime  in  other  coun- 
tries, nor  entitle  him  to  demand,  of  right,  a  trial  in  any  other  mode 
tlian  that  allowed  to  its  own  people  by  the  country  whose  laws  he  has 
violated  and  from  whose  justice  he  has  fied.     When  an  American  citi- 
zen commits  a  crime  in  a  foreign  country  he  cannot  complain  if  re- 
quired to  submit  to  such  modes  of  trial  and  to  such  punishment  as  the 
laws  of  that  country  may  prescribe  for  its  own  people,  unless  a  ditfer- 
ent  mode  be  provided  for  by  treaty  stipulations  between  that  country 
and  the  United  States.     By  the  act  in  question  the  appellant  cannot  be 
extraditedexcept  upon  the  order  of  a  judge  of  a  court  of  the  United 
States,  and  then  only  upon  evidence  establishing  probable  cause  to  be- 
lieve him  guilty  of  the  offense  charged;  and  when  tried  in  the  country 
to  which  he  is  sent,  he  is  secured  by  the  same  act  "  a  fair  and  impar- 
tial trial,"— not  necessarily  a  trial  according  to  the  mode  prescribed  by 
this  country  for  crimes  committed  against  its  laws,  but  a  trial  accord- 
ing to  the  modes  established  in  the  country  where  the  crime  was  com- 
mitted, provided  such  trial  be  had  without  discrimination  against  the 
accused  because  of  his  American  citizenship.     In  the  judgment  of  Con- 
gress these  provisions  were  deemed  adequate  to  the  ends  of  justice  in 
cases  of  persons  committing  crimes  in  a  foreign  country  or  territory 
"  occupied  by  or  under  the  control  of  the  United  States,"  and  subse- 
quently fleeing  to  this  country.     We  cannot  adjudge  that  Congress  in 
this  matter  has  abused  its  discretion,  nor  decline  to  enforce  obedience 
to  its  will  as  expressed  in  the  act  of  June  6th,  1900. 

III.  Another  contention  of  the  appellant  is  tl.at  as  Congress,  by  the 
joint  resolution  of  April  20th,  1898,  declared  that  "  the  people  of  Cuba 
are,  and  of  right  ought  to  be,  free  and  independent,"  and  as  peace  has 
existed  since,  at  least,  the  military  forces  of  Spain  evacuated  Cuba  on 
or  about  January,  1899,  the  occupancy  and  control  of  that  island  under 
the  military  authority  of  the  United  States  is  without  warrant  in  the 
Constitution  and  an  unauthorized  interference  with  the  internal  affairs 
of  a  friendly  power;  consequently  it  is  argued  the  appellant  should 
not  be  extradited  for  trial  in  the  courts  established  under  the  orders  is- 
sued by  the  Military  Governor  of  the  island.  In  support  of  this  propo- 
sition it  is  said  that  the  United  States  recognized  the  existence  of  the 
Republic  of  Cuba,  and  that  the  war  with  Spain  was  carried  on  jointly 
by  the  allied  forces  of  the  United  States  and  of  that  Republic. 

Apart  from  the  view  that  it  is  not  competent  for  the  judiciary  to 
make  any  declaration  upon  the  question  of  the  length  of  time  during 
which  Cuba  may  be  rightfully  occupied  and  controlled  by  the  United 
States  in  order  to  effect  its  pacification— it  being  the  function  of  the 
political  branch  of  the  government  to  determine  when  such  occupation 
and  control  shall  cease,  and  therefore  when  the  troops  of  the  United 
States  shall  be  withdrawn  from  Cuba— the  contention  that  the  United 

187 


§  108  TREATY-^LA^KING  POWER  OF  THE  U.  S.        [CH.  III. 

the  government,  with  which  the  judicial  department  will  not 
interfere. 

states  recognized  the  existence  of  an  established  government  known  as 
the  Republic  of  Cuba,  but  is  now  using  its  military  or  executive  power 
to  displace  or  overthrow  it,  is  without  merit.  The  declaration  by  Con- 
gress that  the  people  of  Cuba  were  and  of  right  ought  to  be  free  and 
independent  was  not  intended  as  a  recognition  of  the  existence  of  an 
organized  government  instituted  by  the  people  of  that  Island  in  hostility 
to  the  government  maintained  by  Spain.  Nothing  more  was  intended 
than  to  express  the  thought  that  the  Cubans  were  entitled  to  enjoy — 
to  use  the  language  of  the  President  in  his  message  of  December  5th, 
1897 — that  "measure  of  self-control  which  is  the  inalienable  right  of 
man,  protected  in  their  right  to  reap  the  benefit  of  the  exhauslless 
treasure  of  their  country."  In  the  same  message  the  President  said: 
"It  is  to  be  seriously  considered  whether  the  Cuban  insurrection  pos- 
sesses beyond  dispute  the  attributes  of  statehood,  which  alone  can  de- 
mand the  recognition  of  belligerency  in  its  favor.  The  same  require- 
ment must  certainly  be  no  less  seriously  considered  when  the  graver  issue 
of  recognizing  independence  is  in  question."  Again,  in  his  message  of 
April  11th,  1898,  referring  to  the  suggestion  that  the  independence  of 
the  Republic  of  Cuba  should  be  recognized  before  this  country  entered 
upon  war  with  Spain,  he  said:  "Such  recognition  is  not  necessary  in 
order  to  enable  the  United  States  to  intervene  and  pacify  the  island. 
To  commit  this  country  now  to  the  recognition  of  any  particular  gov- 
ernment in  Cuba  might  subject  us  to  embarrassing  conditions  of  inter- 
national obligation  toward  the  organization  to  be  recognized.  In  case 
of  intervention  our  conduct  would  be  subject  to  the  approval  or  disap- 
proval of  such  government.  We  should  be  obliged  to  submit  to  its  di- 
rection and  to  assume  to  it  the  mere  relation  of  a  friendly  ally."  To 
this  may  be  added  the  significant  fact  that  the  first  part  of  the  joint 
resolution  as  originally  reported  from  the  senate  committee  read  as 
follows:  "  That  the  people  of  the  island  of  Cuba  are  and  of  right  ought 
to  be  free  and  independent,  and  that  the  government  of  the  United  States 
herebi/  recognizes  the  Republic  of  Cuba  as  thetrue  and  luufid  government 
of  the  Island.'"  But  upon  full  consideration  the  views  of  the  President 
received  the  sanction  of  Congress,  and  the  words  in  italics  were  stricken 
out.  It  thus  appears  that  both  the  legislative  and  executive  branches 
of  the  government  concurred  in  not  recognizing  the  existence  of  any 
such  government  as  the  Republic  of  Cuba.  It  is  true  that  the  co-opera, 
tion  of  troops  commanded  by  Cuban  officers  was  accepted  by  the  mili- 
tary authorities  of  the  United  States  in  its  efforts  to  overthrow  Spanish 
authority  in  Cuba.  Yet  from  the  beginning  to  the  end  of  the  war  the 
supreme  authorit}'  in  all  military  operations  in  Cuba  and  in  Cuban  wa- 
ters against  Spain  was  with  the  United  States,  and  those  operations 
were  not  in  any  sense  under  the  control  or  direction  of  the  troops  com- 
manded by  Cuban  officers. 

We  are  of  opinion,  for  the  reasons  stated,  that  the  act  of  June  6th^ 
1900,  is  not  in  violation  of  the  Constitution  of  the  United  States,  and 

188 


CH.  in.]    SOVEREIGNTY  OF  U.  S.  AND  OTHER  POWERS.    §  109 

Whatever  the  status  of  Cuba  may  be  as  to  the  United 
States,  therefore,  its  status  as  to  other  powers  is  that,  so  long 
as  the  occupation  of  the  military  forces  of  the  United  States 
continues,  it  must  necessarily  be  considered  as  much  under  the 
jurisdiction  of  the  United  States  government  as  though  it 
were  an  integral  part  of  the  territory  thereof. 

§  109.  National  unity  as  to  all  foreign  powers,  a  principle 
enunciated  by  the  Congress  of  the  Confederation,  and  con- 
tinued until  the  present  time. — One  of  the  earliest  acts  of  the 
Continental  Congress  was  to  pass  a  resolution  that  in  our  deal- 
ings with  foreign  powers  the  United  States  and  colonies  should 
be  considered  as  one  nation.'  This  resolution  was  passed  at  a 
time  when  the  people  of  the  States  had  by  no  means  surren- 
dered the  same  extent  of  power  to  the  Central  Government  as 
was  subsequently  vested  in  it  and  is  therefore  a  clear  indica- 
tion that  from  the  earliest  times  unity,  so  far  as  foreign  powers 
were  concerned,  became,  and  it  ever  since  has  remained,  one 


that  this  case  comes  within  the  provisions  of  that  act.  The  court  be- 
low having  found  that  tliere  was  probable  cause  to  believe  the  appel- 
lant guilty  of  the  offences  charged,  the  order  for  his  extradition  was 
proper,  and  no  ground  existed  for  his  discharge  on  habeas  corpus. 

The  judgment  of  the  Circuit  Court  is,  therefore. 

Affirmed. 


§109. 

13  Secret  Journals  of  Congress, 
452.  "March  26,  1784:  Congress 
took  into  consideration  the  report 
of  a  committee,  consisting  of  Mr. 
Jefferson,  Mr.  Gerry  and  Mr.  Wil- 
liamson to  whom  were  referred 
sundry  letters  from  the  ministers 
of  the  United  States  in  Europe. 
And  sundry  instructions  to  the 
ministers  relative  to  the  formation 
of  commercial  treaties  with  sundry 
European  nations  being  under  de- 
bate, and  the  third  article  or  in- 
struction being  amended  to  read  as 
follows:  '  That  these  United  States 
be  considered  in  all  such  treaties, 
and  in  every  case  arising  under 
them,  as  one  nation,  upon  the  prin- 
ciples of  the  Federal  constitution.' 

"  A   motion   was   made  by  Mr. 


Elleiy,  seconded  by  Mr.  Howell, 
to  strike  out  that  instruction;  and 
on  the  question,  Shall  it  stand,  the 
yeas  and  nays  being  required  by  Mr. 
Reed.  New  Hampshire,  Mr.  Foster, 
Mr.  Blanchard;  Massachusetts,  Mr. 
Gerry,  Mr.  Partridge;  New  York, 
Mr.  Paine;  New  Jersey,  Mi-.  Beatty, 
Mr.  Dick ;  Pennsylvania,  Mr.  MiflSin, 
Mr.  Montgomery;  Maryland,  Mr. 
Stone,  Mr.  Chase;  Virginia,  Mr. 
Jefferson,  Mr.  Hardy,  Mr.  Mercer, 
(Mr.  Lee,  no),  Mr.  Monroe;  North 
Carolina,  Mr.  Williamson,  Mr. 
Spaiglit;  South  Carolina,  Mr.  Read, 
Mr.  Beresford,  (eiglit  states  be- 
sides New  York  not  counted,  only 
one  delegate  voting)  aye;  Rhode 
Island,  Mr.  Ellery,  Mr.  Howell; 
Connecticut,  Mr.  Sherman,  Mr. 
Wadsworth;   two  states,  no.     'So 

189 


§  109  TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  HI. 

of  the  fundamental  principles  upon  which  the  United  States 
was  based.2 

The  principle  then  enunciated  of  unity  as  to  foreign  powers 
has  been  so  continuously  and  consistently  adhered  to  b}''  the 
United  States,  and  adopted  by  all  foreign  powers,  that  it 
never  can  be  receded  from,  but  must  be  accepted  as  a  part 
of  the  organic  law  of  this  country,  carrj'ing  with  it  all  the 
benefits  derivable  therefrom  as  well  as  all  the  responsibilities 
which  can  be  based  thereon. 


it  was  resolved  iu  the  affirmative.'  " 
See  coinmeuts  of  J.  C.  Bancroft 
Davis'  notes  to  Miller's  Lectures 
on  tlie  Constitution  of  the  United 
States,  pp.  .53-54. 

2  Since  the  completion  of  this 
chapter  the  Supreme  Court  has  de- 
cided several  of  the  Insular  Cases 
in  which  the  stahts  of  some  of  the 
recently  acquired  possessions  of 
the  United  States  has  been  deter- 
mined. Those  cases  are  discussed 
in  another  part  of  this  volume 
{§  61,  pp.  117,  et  seq.,  and  other  sec- 
tions there  referred  to  post,  and 
appendix  at  end  of  volume),  and 
there  is  not  room  for  any  extended 
reference  to  those  decisions  at  this 
point.  The  question  of  national 
unity  and  the  complete  control  of 
foreign  relations  by  the  Central 
Government  was  raised  and  numer- 
ous cases  cited  in  regard  thereto. 
See  collation  of  cases  in  Insulae 

190 


Cases  Appendix  at  end  of  this  vol- 
ume. Amongst  those  cases  will  be 
found  the  following: 

Barron  vs.  Baltimore,  U.  S.  Sup. 
Ct.  1833,  7  Peters,  243,  Maksha1.l, 
Ch.  J. ; 

Briscoe  vs.  Bank,  U.  S.  Sup.  Ct. 
1837,  11  Peters,  257,  McLean,  J.; 

Chinese  Exclusion  Cases,  U.  S.  Sup. 
Ct.  1889,  130  U.  S.  581,  Field,  J.; 
also  1893,  149  U.  S.  698,  Gray,  J. ; 

Cross  vs.  Harrison,  U.  S.  Sup.  Ct. 
1853,  16  How.  164,  Wayne,  J.; 

Elciu  V.  United  States,  U.  S.  Sup. 
Ct.  1891,  142  U.  S.  651,  Gray,  J.; 

Fleminrj  vs.  Page,  U.  S.  Sup.  Ct. 
1850,  9  How.  603,  Taney,  Ch.  J.; 

Geofroy  vs.  Eigijs,  U.  S.  Sup.  Ct. 
1890,  133  U.  S.  258,  Field,  J.; 

Neagle,  In  re,  U.  S.  Sup.  Ct.  1890, 
135  U.S.  1,  Miller,  J.; 

United  States  vs.  Rice,  U.  S.  Sup. 
Ct.  1819,  4  Wheat.  246,  Story,  J. 


PART  n. 

HTSTOKICAL    KEVIEW    OF    THE    TKEATY-MAKING    POWER 
OF    THE    UNITED    STATES. 


CHAPTER  IV. 


THE  TKEATY-MAKING  POWER  AS  AN  ATTRIBUTE  OF  SOVEREIGNTY 
AND  AS  EXERCISED  BY  CENTRAL  GOVERNMENTS  OF  CONFED- 
ERATED POWERS. 


Section 

110 — Ancient  origin  of  treaties. 

Ill — Treaty-making  always  vested 
in  highest  powers;  Profes- 
sor Woolsey's  views. 

112 — Views  of  Professor  Law- 
rence. 

113 — Views  of  Henry  Wheaton. 

114 — In  confederations  the  treaty- 
making  power  is  in  the 
central  government. 

115 — Views  of  Professor  Hall. 

116 — Views  of  Professor  Pomeroy. 

117 — Constitutional  limitations  on 
treaty-making. 

118 — Commeucemeut  of  modern 
period  of  international  law. 

119 — Disregard  of  colonies  iu 
treaties  made  by  Euro- 
pean powers  as  to  Ameri- 
can affaii's. 

120 — Treaty-making  power  of 
Great  Britain  vested  in 
the  Crown. 

121 — Colonies  have  no  treaty-mak- 
ing power  except  through 
the  Crown. 

122 — Status  of  Dominion  of  Can- 
ada as  to  treaty-making 
power. 


Section 

123 — Concrete  example  of  above 
principles. 

12-4 — Actual  practice  to  appoint 
Commissioners  from  local- 
ity aifected. 

125 — Territorial  origin  of  States 
of  the  Union. 

126 — No  State  or  Territory  ever 
possessed  treaty-making 
power  except  Texas  and 
Hawaii. 

127 — That  of  Texas  and  Hawaii 
ceased  on  their  becoming 
part  of  the  United  States. 

128 — Treaty-making  power  of  Ger- 
many. 

129 — Treaty-making  power  of 
South Anieiican  countries. 

130 — Other  instances  of  treaty- 
making  power. 

131 — Treaty-making  power  as  an 
attribute  of  sovereignty 
evidenced  in  cases  of  ces- 
sion of  territory. 

132— General  application  of  prin- 
ciples. 

133 — Power  only  to  be  exercised 
by  governments  possessing 
complete  sovereignty. 


§  110.  Ancient  orij?in  of  treaties. — Treaties,  leagues  and 
compacts  have  been  made  from  time  immemorial  between 
different  powers,  states,  tribes,  peoples  and  princes.  The 
Bible  records  many  instances  of  treaties  and  leagues ;  one 

191 


§  111  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  IV. 

very  notable  case  was  the  compact  made  by  the  Children  of 
Isreal  with  the  Gibeonites  when  they  were  entering  the  Prom- 
ised Land,  and  which  is  especially  analogous  to  the  question 
under  consideration,  as  it  was  made  between  the  chiefs  of  the 
two  nations ;  notwithstanding  the  fraud  by  which  the  Gib- 
eonites procured  exemption  from  the  general  slaughter  to 
which  all  the  other  tribes  of  Canaan  had  been  doomed,  the 
compact  was  suffered  to  remain  inviolate,  although  the  Chil- 
dren of  Isreal  themselves  resented  it,  because  the  tribal  chiefs 
in  whom  the  power  was  vested  had  exercised  it,  and  thus 
had  plighted  the  faith  of  the  nation,  thereby  binding  all  the 
tribes  and  members  thereof,  making  it  impossible  for  them 
to  recede  from  the  compact,  although  they  meted  out  a  pro- 
longed punishment  on  the  Gibeonites  for  the  fraud  and  deceit 
which  had  been  practiced.'  AVe  are  also  told  at  a  later  period 
of  the  tei'rible  retribution  which  resulted  from  Saul's  viola- 
tion of  that  treaty.^  The  histories  of  Kome  and  Greece  are 
replete  with  instances  in  which  their  relations  with  other 
peo]iles  were  established  and  maintained  by  treaties.^ 

§  111.  Treaty-niakiug  always  vested  iu  highest  powers ; 
Professor  Woolsey's  vieAVS. — There  are  recorded  instances 
of  treaty-making  during  the  entire  known  history  of  the 
world  ;  in  almost  every  case  it  will  be  found  that  the  right 
has  been  vested  in  the  highest  governmental  power ;  in  fact, 
the  right  of  negotiation  with  foreign  powers  has  not  only 
always  been  considered  as  a  badge,  or  attribute,  of  complete 
nationality  and  sovereignty,  but,  as  a  general  rule,  the  power 
of  negotiation  does  not  exist  in  those  pohtical  bodies  which 
lack  any  of  the  elements  of  complete  nationality  and  sover- 
eignty ;  nor  can  the  right  be  exercised  by  any  person  or  power 
other  than  the  highest  sovereign  power  or  the  duly  qualified 
representatives  thereof.  That  the  right  of  making  treaties 
is  an  essential  attribute  of  sovereignty  to  be  exercised  only 
by  the  highest  power,  and  that  States  which  have  parted 
with  their  sovereignty  or  any  part  thereof,  have  no  treaty- 
making  power,  is  a  rule  which  has  practically  been  admitted 


§110. 

1  Joshua,  chap.  IX,  3-27. 

2  2  Samuel,  chap.  XXI,  1-12. 

3  See   Walker's   History  of    the 

192 


Law  of  Nations,  vol.  1,  Cambridge, 
Engl.  1899,  p.  34,  for  Jewish  Treat- 
ies; pp.  47-61,  for  Roman  Treaties; 
p.  78  for  Saracen  Treaties. 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  111 

by  all  writers  on  international  law/  and  which  has  also  been 
incoi'poruted  into  the  organic  law  of  nearly  all  constitution- 
ally governed  countries.^  Professor  Theodore  S.  Woolsey's 
views  on  this  subject  are  expressed  in  his  book  on  interna- 
tional law  in  the  extract  quoted  in  the  note  to  this  section.^ 


§  111. 

^See  the  provisions  in  constitu- 
tions as  to  treaty- making  power 
collated  in  note  to  §  130  of  this 
chapter,  post. 


2  For  the  serious  consequences  of 
departing  from  this  rule  in  regard 
to  treaties  between  the  Indian 
tribes  and  the  United  States,  see 
§§  401-406,  chap.  XIV,  Vol.  II. 


3  PROFESSOR  "WOOLSEY'S  VIEWS. 

"Sec.  101.  Of  the  right  of  contract  and  especially  of  treaties.  A  con- 
tract is  one  of  the  higiiest  acts  of  human  free  will:  it  is  the  will  binding 
itself  in  regard  to  the  future,  and  surrendering  its  right  to  change  a  cer- 
tain expressed  intention,  so  that  it  becomes  morally  and  jurally  a  wrong 
to  act  otherwise;  it  is  the  act  of  two  parties  in  which  each  or  one  of  the 
two  conveys  power  over  himself  to  the  other  in  consideration  of  some- 
thing done  or  to  be  done  by  the  other.  The  binding  force  of  contracts 
is  to  be  deduced  from  the  freedom  and  foresight  of  man,  which  would 
have  almost  no  sphere  in  society  or  power  of  co-operation,  unless  trust 
could  be  excited.  Trust  lies  at  the  basis  of  society;  society  is  essential 
for  the  development  of  the  individual;  the  individual  could  not  develop 
his  free  forethought,  unless  an  acknowledged  obligation  made  him  sure 
in  regard  to  the  actions  of  others.  That  nations,  as  well  as  individuals, 
are  bound  by  contract,  will  not  be  doubted  when  we  remember  that  they 
have  the  same  properties  of  free  will  and  forecast;  that  they  could  have 
no  safe  intercourse  otherwise,  and  could  scarcely  be  sure  of  any  settled 
relations  towards  one  another  except  a  state  of  war,  and  that  thus  a 
state  of  society,  to  which  the  different  needs  and  aptitudes  of  the  parts 
of  the  world  invite  men  would  be  impossible.  We  have  already  seen, 
that  without  this  power  a  positive  law  of  nations  could  not  exist,  which 
needs  for  its  establishment  the  consent  of  all  who  are  bound  by  its  pro- 
visions. National  contracts  are  even  more  solemn  and  sacred  than  priv- 
ate ones,  on  account  of  the  great  interests  involved  of  the  deliberateness 
with  which  the  obligations  are  assumed,  of  the  permanence  and  gener- 
ality of  the  obligations,— measured  by  the  national  life,  and  including 
thousands  of  particular  cases,— and  of  each  nation's  calling,  under  God, 
to  be  a  teacher  of  right  to  all  within  and  without  its  borders. 

"  Contracts  can  be  made  by  states  with  individuals  or  bodies  of  indi- 
viduals, or  with  other  states.  Contracts  between  states  may  be  called 
conventions  or  treaties.  Among  the  species  of  treaties  those  which  put 
an  end  to  a  war  and  introduce  a  new  state  of  intercourse,  or  treaties  of 
peace,  will  be  considered  here,  only  so  far  as  they  partake  of  the  gen- 
eral character  of  treaties:  their  relations  to  war  will  be  considered  in 
the  chapter  devoted  to  that  subject. 

"Sec.  102.  Treaties  allowed  under  the   law  of  nations  are  uncon. 

13  193 


§  112  TREATY-MAKING  POWER  OP  THE  U.  S.        [CH.  IV. 

§  112.  Tiews  of  Professor  Lawrence. — "  We  begin  with 
Sovereign  States.  In  order  clearl}^  to  understand  their  na- 
ture and  the  nature  of  their  subjection  to  International  Law, 
it  will  be  necessary  to  pass  through  an  ascending  series  of 
conceptions,  beginning  with  the  comparatively  rudimentary 
one  of  a  state.  A  state  may  be  defined  as  A  political 
community,  the  onemhers  of  which  are  hound  together  hy  the 
tie  of  common  subjection  to  some  central  authointy,  whose 
commands  the  hulk  of  them  hahitually  obey.  This  central 
authority  may  be  vested  in  an  individual  or  a  body  of  in- 
dividuals; and,  though  it  may  be  patriarchal,  it  must  be 
something  more  than  parental;  for  a  family  as  such  is  not  a 
political  community  and  therefore  not  a  state.  The  methods 
by  which  the  central  authority  is  created  are  outside  our 
present  subject.  Whether  a  political  community  is  gov- 
erned by  a  line  of  hereditary  monarchs,  or  by  persons  elected 
from  time  to  time  by  the  votes  of  a  greater  or  less  number 

strained  acts  of  independent  powers,  placing  tliem  under  an  obligation 
to  do  something  which  is  not  wrong,  or, — 

"  1.  Treaties  can  be  made  only  by  the  constituted  authorities  of  na- 
tions, or  by  persons  specially  deputed  by  them  for  that  purpose.  An 
unauthorized  agreement,  or  ?^8i:>onsio^  like  that  of  the  consul Postumius 
at  the  Caudine  Forks,  does  not  bind  the  sovereign, — it  is  held, — for  the 
engager  had  no  power  to  convey  rights  belonging  to  another.  And  yet 
it  may  be  morally  wrong  in  a  high  degree  for  the  sovereign  to  violate 
such  an  engagement  of  a  subordinate;  for  it  might  be  an  act  of  extreme 
necessity,  to  which  the  usual  forms  of  governmental  proceedings  would 
not  apply.  Moreover  the  actions  of  military  or  naval  commanders  must 
be  to  a  certain  extent  left  without  positive  restrictions,  and  usage  might 
be  pleaded  for  many  transactions  of  this  nature.  Again,  from  the  nature 
of  the  case  a  faction,  a  province,  or  an  integral  part  of  a  close  confeder- 
ation has  no  treaty- making  power;  although  a  loose  confederation,  like 
the  Germanic,  might  exist,  while  conceding  such  a  prerogative  to  its 
members.  Individuals,  or  other  dependent  bodies,  can  make  commer- 
cial arrangements  with  a  foreign  power,  unless  their  laws  forbid;  but 
the  arrangements  apply  to  a  particular  case,  and  obligate  none  else; 
they  are  like  any  other  private  contracts;  nor  has  a  government  over 
such  a  contracting  party  anything  to  do  in  the  premises,  save  to  protect 
and,  if  expedient,  to  afford  its  redress  against  injustice.  Political  en- 
gagements, or  such  as  affect  a  body  politic,  can  be  made  only  by  politi- 
cal powers.  And  the  actual  sovereign  alone,  or  a  power  possessing  the 
attributes  of  sovereignty  at  the  time,  can  bind  a  nation  by  its  engage- 
ments." Woolsey's  Introduction  to  the  study  of  International  Law,  §  101 
-102,  pp.  158-159,  6th  ed.  New  York,  1891 

194 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  113 

of  its  members,  it  is  a  state  provided  that  the  obedience  of 
the  bulk  of  the  people  is  rendered  to  the  authorities.  If 
there  is  no  such  obedience,  there  is  anarchy ;  and  in  propor- 
tion as  obedience  is  lacking  the  community  runs  the  risk  of 
losing  its  statehood.  A  mere  administrative  division  of  a 
greater  whole,  such  as  a  French  Department  or  an  English 
County,  vv^ould  not  be  called  a  state ;  but  we  should  not 
refuse  the  title  to  a  community  like  Canada  which  is  not 
entirely  free  from  political  subjection,  though  we  should 
probably  indicate  the  absence  of  complete  self-government 
by  speaking  of  it  as  a  Dependent  State. 

"  We  have  seen  what  is  meant  by  a  state.  If  we  add  to 
the  marks  already  given  in  our  definition  of  it,  the  further 
mark  that  the  body  or  individual  who  receives  the  habitual 
obedience  of  the  community  does  not  render  the  like  obedi- 
ence to  any  earthly  superior,  we  arrive  at  the  conception  of 
a  Sovereign  or  Independent  State,  which  possesses  not  only 
internal  sovereignty,  or  the  power  of  dealing  with  domes- 
tic affairs,  but  external  sovereignty  also,  or  the  power  of 
dealing  with  foreign  affairs.  The  commonwealths  which 
compose  the  American  Union  possess  all  the  features  we  have 
enumerated  as  the  distinguishing  marks  of  states.  They 
are,  therefore,  rightly  so  called  ;  but  historical  and  political 
reasons  have  sometimes  caused  them  to  be  alluded  to  as 
Sovereign  States.  Strictly  speaking,  this  is  a  mistake.  By 
the  Constitution  of  the  United  States  all  dealings  Avith  for- 
eign powers  are  left  to  the  central  government.  The  Exe- 
cutive and  Legislature  of  any  and  every  state  in  the  Union 
are  devoid  of  the  slightest  power  to  act  in  these  matters, 
and  have  to  submit  to  what  is  done  by  the  authorities  at 
Washington.  They  have  none  of  the  attributes  of  external 
sovereignty.  They  cannot  make  war  or  peace,  nor  can  they 
send  agents  to  foreign  powers  or  receive  agents  from  them. 
In  other  words,  they  are  states,  but  they  are  not  Sovereign 
States."  1 

§  113.  Views  of  Henry  WLeaton.— "  The  power  of  nego- 


§112. 

1  Lawrence's  Principles  of  Inter- 
national Law,  §  43,  pp.  5G-57,  Bos- 
ton, 1895.     See  also  same  volume, 


§  144,  pp.  263-264,  for  Professor 
Lawrence's  views  as  to  treaty-mak- 
ing power  of  confederations.  See 
also  note  to  §  114,  post. 

195 


§  114  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IV. 

tiating  and  contracting  public  treaties  between  nation  and 
natioQ  exists  in  full  vigor  in  every  sovereign  state  which  has 
not  parted  with  this  portion  of  its  sovereignty,  or  agreed  to 
modif}''  its  exercise  by  compact  with  other  states.  .  .  . 
Thus  the  several  States  of  the  North  American  Union  are 
expi-esslv  prohibited  from  entering  into  any  treaty  with  for- 
eign powers;  .  .  .  whilst  the  sovereign  members  of  the 
Germanic  Confederation  retain  the  power  of  concluding 
treaties  of  alliance  and  commerce,  not  inconsistent  with  the 
fundamental  laws  of  the  Confederation.  The  Constitution, 
or  fundamental  law,  of  every  particular  State  must  deter- 
mine in  whom  is  vested  power  of  negotiating  and  contract- 
ing treaties  with  foreign  powers.^ " 

The  power  referred  to  by  AVheaton  as  retained  by  the 
constituent  sovereignties  of  the  Germanic  Confederation  to 
continue  to  exercise  foreign  relations  proved  so  embarrassing 
that  when  the  present  German  Empire  was  organized  the 
several  States  and  sovereignties  composing  it  were  com- 
pelled to  surrender  the  treaty-making  power  absolutely  to, 
and  vest  it  in,  the  Central  Government,  by  which  it  is  ex- 
clusively exercised  with  as  far-reaching  powers  as  though 
the  Empire  were  a  single  unit.^ 

§  114.  In  coufederatious  tlie  treaty-making  power  is  in 
the  Central  Government.— As  the  treaty-making  power  is 
lodtred  in  the  highest  governmental  authority  in  each  state, 
it  follows  that  in  confederated  states  the  power  must  be 
lodged  in  the  central  government  of  the  federation,  as  under 
no  other  circumstances  could  it  be  properly  exercised.  The 
impracticabihty  of  allowing  constituent  states  to  exercise 
anv  treaty-making  power  was  demonstrated  in  the  case  of 
the  North  German  Confederation,  and  as  just  stated,  that 
method  was  abandoned  on  the  formation  of  the  Empire.^ 


§113. 

iWheaton's  Elements  of  Inter- 
national Law,  part  3,  chap.  II,  §  1, 
p.  185,  Philadelphia,  1836;  part  3, 
chap.  II,  §  1,  p.  441,  of  Lawrence's 
Wheaton,  2d  edition,  Boston.  1863; 
chap.  II,  §  252,  p.  356,  of  Boyd's 
Third  English  edition,  London, 
1889 ;  chap.  II,  §  252,  p.  328  of  Dana^s 

196 


Wheaton,   Eighth  edition,  Boston, 
18G6. 

2  For  constitntional  provisions  as 
to  the  exercise  of  the  treaty-mak- 
ing power  in  Germany,  see  §§  128 
and  130  and  foot-notes  thereunder, 
post. 

§114. 

iSee  §  113,  ante,  and  foot-note. 


CH.  IV.]    TREATY-MAKING  POWEE  OP  FEDERATIONS.       §  114 

II  may  be  too  broad  an  assertion  to  state  that  the  treaty- 
making-  power  never  exists  in  constituent  States,  but  as  a 
general  principle  it  may  be  said  that  the  central  government 
of  federations  is  the  only  government  which  other  powers 
will  recognize  in  dealing  with  an^^  matter  affecting  the  entire 
federation  or  any  of  the  constituent  states,  and  that  this  rule 
has  not  only  been  generally  adopted  as  a  principle  of  inter- 
national law  but  also  of  the  constitutional  law  of  nearly  all 
existing  confederations.'^  The  views  of  some  authorities  on 
international  law  are  collated  in  the  footnote  hereto.^ 

2  See  collation  of  constitutional  [  provisions  as  to  treaty  making  in 

1  note  to  §  130,  post. 

SpKOFESSOR    LAWRENCE'S  VIEWS. 

"The  Sovereign  States  which  are  Subjects  of  International  Law  are 
regarded  as  units  in  their  dealings  with  other  states.  They  are  corpo- 
rate bodies,  acting  through  their  governments.  Each  state  is  bound  by 
the  engagements  entered  into  by  its  rulers  on  its  behalf,  as  long  as  they 
have  beeu  made  in  accordance  with  its  own  law  and  constitution. 
Other  states  have  no  right  to  dictate  what  individual  or  body  in  a  state 
shall  conduct  its  external  affairs.  As  long  as  there  is  such  an  individ- 
ual or  body  of  individuals,  they  must  transact  their  business  with  him 
or  them.  If  no  such  authority  exists,  they  can  decline  to  transact  busi- 
ness at  all;  and  if  a  state  remains  for  any  length  of  time  in  such  a  con- 
dition of  revolution  or  anarchy  that  no  one  has  authority  to  speak  on 
its  behalf,  it  will  soon  cease  to  be  a  Subject  of  International  Law  in  its 
existing  form,  though  in  all  probability  its  territory  and  people  will 
enter  into  new  combinations  and  still  retain  under  changed  conditions 
some  place  in  the  ranks  of  civilized  states.  The  continuity  of  a  state, 
and  consequently  its  liability  to  be  called  upon  to  fulfill  the  interna- 
tional obligations  it  has  contracted,  is  not  affected  by  change  of  govern- 
ment or  loss  of  outlying  territory.  But  if  it  splits  up  into  several 
states,  or  is  obliterated  altogether  like  Poland,  or  enters  with  others, 
like  each  of  the  American  colonies  whose  independence  was  recognized 
by  Great  Britain  in  178.3,  into  a  union  for  the  formation  of  a  new  state, 
it  loses  its  corporate  existence  as  a  Subject  of  International  Law.  When 
this  happens,  the  circumstances  of  each  case  decide  what  is  to  become 
of  the  debts  and  other  obligations  with  wliich  the  lost  state  was  bur- 
dened. In  some  instances  they  disappear  with  the  body  corporate  to 
which  they  belonged;  in  others  an  equitable  division  of  them  is  made. 
The  law  of  nations  lays  down  no  clear  rules  with  regard  to  these  mat- 
ters; but  it  does  clearly  say  that  if  a  state  desires  to  have  intercourse 
with  other  states,  there  must  be  some  authority  within  it  capable  of 
pledging  it  to  a  given  course  of  conduct. 

"  This  is  true  of  Confederations  no  less  than  of  States  which  are  organic 
wholes  in  their  internal  organizatiun.     Confederations   are  generally 

197 


§  115  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  IV. 

§  115.  Views  of  Professor  Hall — William  E.  Ilall,  whose 
works  to-day  rank  among  the  leading  English  authorities  on 

divided  into  two  kinds,  for  neither  of  which  is  there  a  good  term  in  the 
English  kinguage.  The  first,  culled  in  German  a  Bundes.'itaat,  com- 
prises those  unions  in  which  the  central  authority  alone  can  deal  with 
foreign  powers  and  settle  external  affairs,  the  various  members  of  the 
Confederation  having  control  over  their  internal  affairs  only.  In  the 
second,  called  a  Staatenlmnd,  are  included  all  Confederations  where  the 
States  which  have  agreed  to  unite  have  retained  for  themselves  the 
power  of  dealing  directly  with  others  in  some  matters,  the  remaining 
external  affairs  being  reserved  by  the  federal  bond  to  the  central 
authority.  Unions  of  the  first  kind  have  been  called  Supreme  Federal 
Governments,  unions  of  the  second  kind  Systems  of  Confederated 
States.  The  best  examples  of  the  former  now  in  existence  are  the 
United  States  of  America  and  the  Swiss  Confederation.  No  good  ex- 
ample of  the  latter  remains  to  the  present  time;  but  the  German  Bund 
from  1815  to  1866  exhibited  to  the  world  in  full  perfection  the  disad- 
vantages of  this  kind  of  union.  From  the  point  of  view  of  International 
Law,  a  Bundesstaat  does  not  differ  from  an  ordinary  Sovereign  State. 
It  forms  but  one  state  in  relation  to  foreign  powers,  though  internally 
it  may  consist  of  many  states.  But  as  these  states  have  no  right  of 
sending  and  receiving  diplomatic  missions,  or  making  peace  or  war, 
foreign  powers  have  as  little  to  do  with  them  as  they  have  with  the 
administrative  divisions  of  an  ordinary  state.  The  case  of  a  Staaten- 
bund  is  different.  It  is  a  bundle  of  separate  states,  each  of  which  re- 
tains some  of  the  rights  of  external  sovereignty  while  it  is  deprived  of 
the  remainder.  Accordingly  the  states  which  compose  it  must  be 
placed  by  International  Law  among  those  part-sovereign  communities 
which  we  have  to  consider  as  the  second  class  among  its  subjects. 
They  are  something  more  than  administrative  divisions  of  a  larger 
whole.     They  are  something  less  than  Sovereign  States. 

"  It  is  sometimes  exceedingly  difficult  to  refer  a  given  Confederation  to 
either  of  the  types  depicted  above.  The  Swiss  Confederation,  for  in- 
stance, was  at  its  inception  a  union  of  the  looser  kind.  It  is  now  a 
Supreme  Federal  Government,  or  Bundesstaat.  But  at  certain  periods 
of  its  history  it  could  hardly  have  been  called  one  or  the  other  with  any 
regard  to  accuracy.  At  the  present  time  the  new  German  Empire, 
which  was  constituted  in  1871  in  consequence  of  the  successful  war 
with  France,  is  in  much  the  same  predicament.  The  central  authority 
makes  war  and  peace,  sends  and  receives  ambassadors,  and  negotiates 
treaties  for  political  and  commercial  objects.  But  the  governments  of 
some  of  the  states  which  form  the  empire  have  the  right  of  accrediting 
diplomatic  representatives  to  foreign  powers  and  receiving  representa- 
tives from  them  to  deal  with  matters  not  reserved  to  the  Imperial  Gov- 
ernment. Moreover,  Bavaria  and  Saxony  have  ministers  for  foreign 
affairs.  Probably  the  diplomatists  in  question  are  not  overwhelmed 
with  work;  for  it  is  difficult  to  discover  in  tlie  Constitution  of  the  Em- 
pire any  matters  left  for  them  to  deal  with.     But  since  a  right  of  sepa- 

198 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  115 

international  law,  referred  to  the  treaty-making  power  in 
the  following  words :  "  It  follows  from  the  position  of  a  State 

rate  diplomatic  intercourse  with  foreign  powers  is  vested  in  the  more 
important  of  the  federated  states,  we  are  unable  to  say  that  the  Con- 
federation is  a  true  Bundesstaat,  however  insignificant  the  deflections 
from  that  type  may  be.  At  the  same  time  it  is  equally  impossible  to 
call  it  a  Staatenbund,  in  view  of  the  fact  that  for  all  practical  purposes 
the  central  authority  alone  transacts  the  external  business  of  the  Union. 
There  can,  however,  be  no  doubt  that,  if  the  Confederation  lasts,  the 
subordinate  states  will  rapidly  lose  whatever  control  over  their  rela- 
tions with  foreign  powers  they  may  still  possess."  Lawrence's  Princi- 
ples of  International  Law,  Boston,  1895,  section  45,  pp.  60-63. 

DB.  PHILLIMORE'S  VIEWS. 

"  C.  We  now  arrive  at  the  second  branch  of  this  part  of  our  subject — 
namely,  the  consideration  of  several  States  under  a  Federal  Union. 
The  examples  in  modern  times  of  this  description  of  States  are  the  fol- 
lowing:— 

"  1.  The  Germanic  Confederation  (Der  Deutsche  Bund)  (a),  the  North 
German  Confederation  from  1866  to  1871,  the  German  Empire  since 
1871. 

"  2.  The  Confederated  Cantons  of  Switzerland. 

"3.  The  United  Republics  of  North  America. 

"4.  The  United  Republics  of  Central  and  South  America: — namely, 
first.  The  United  Provinces  of  Guatemala,  or  the  Republic  of  Central 
America;  secondly.  The  United  Provinces  of  Rio  de  la  Plata,  or  the 
Argentine  Republic. 

"  CI.  States  under  a  Federal  Union  may  be  classed  under  two  princi- 
pal heads: — First.  Those  which  have  retained  their  Independent  and 
Individual  Sovereignty,  especially  as  to  the  adjustment  of  their  external 
relations  with  other  Nations,  and  belong  to  a  system  of  Confederated 
States  only  for  purposes  of  domestic  and  internal  policy,  and  of  mutual 
assistance  and  defence.     (Staatenbund)  (b). 

"  But  the  Laws  of  this  Federal  Body  have  only  effect  and  force  in  the 
separate  membei's  of  the  system  through  the  agency  and  application  of 
the  particular  laws  and  jurisdiction  of  each  individual  Government; 
therefore,  as  far  as  Foreign  Power  is  concerned,  these  Confederated 
States  must  be  considered  as  individually  responsible  for  their  conduct, 
and  as  separate  Independent  States.  In  this  class  must  be  ranked  the 
existing  Germanic  Confederation. 

"Secondly.  The  Federal  Union  may  be  so  adjusted  tliat  the  manage- 
ment of  the  external  relations  of  the  respective  members  of  the  Union 
be  absolutely  vested  in  a  Supreme  Federal  Power."  Phillimore's  In- 
ternational Law,  3d  edition,  London,  1899,  vol.  1,  pp.  156-157. 

GARDNER'S  INSTITUTES. 

"Nations,  by  their  fundamental  laws,  may  respectively  limit  the 
authority  of  the  treaty-making  power;  but  if  there  be  no  limitation, 

199 


§  116  TREATY-^LVKING  POWER  OF  THE  U.  S.         [CH.  IV. 

as  a  moral  being,  at  liberty  to  be  guided  by  its  own  will,  that 
it  has  the  power  of  contracting  with  another  State  to  do  any 
acts  which  are  not  forbidden,  or  to  refrain  from  an}'  acts 
which  are  not  enjoined  by  the  law  which  governs  its  inter- 
national relations,  and  this  power  being  recognized  by  inter- 
national law,  contracts  made  in  virtue  of  it,  when  duly  con- 
cluded, become  legally  obligatory,     ... 

"  The  antecedent  conditions  of  a  treaty  may  be  stated  as 
follows :  The  parties  to  it  must  be  capable  of  contracting ; 
the  agents  employed  must  be  dul}^  empowered  to  contract  on 
their  behalf ;  the  parties  must  be  so  situated  that  the  consent 
of  both  may  be  regarded  as  freely  given ;  and  the  objects  of 
the  agreement  must  be  in  conformity  with  law. 

"  All  States  which  are  subject  to  international  law  are  cap- 
able of  contracting,  but  they  are  not  all  capable  of  contract- 
ing for  whatever  object  they  may  wish.  The  possession  of 
full  independence  is  accompanied  by  full  contracting  power ; 
but  the  nature  of  the  bond  uniting  members  of  a  confedera- 
tion, or  joining  protected  or  subordinate  States  to  a  superior, 
implies  either  that  a  part  of  the  power  of  contract  normally 
belonofinsr  to  a  State  has  been  surrendered,  or  else  that  it 
has  never  been  acquired.  All  contracts,  therefore,  are  void 
which  are  entered  into  by  such  States  in  excess  of  the  powers 
retained  by,  or  conceded  to,  them  under  their  existing  rela- 
tions with  associated  or  superior  States."^ 

§  116.  Views  of  Professor  Pomeroy. — John  JSTorton  Pom- 
eroy,  whose  opinion  upon  the  general  subject  is  strengthened 
by  the  fact  that  he  is  one  of  the  leading  authorities  upon  con- 
treaties  of  peace  as  well  as  otbers,  may,  by  virtue  of  the  nation's  right 
of  eminent  domain,  and  of  a  general  treaty-making  power,  alien  any 
part  of  the  pnV)lic  domain  or  property,  and  abandon  for  the  public  ad- 
vantage, all  private  claims  and  property  of  the  citizens  of  either  con- 
tracting party  upon  the  other,  or  its  citizens.  (Wheat.  Int.  L.  p.  4,  c.  4, 
Sec.  1,  2,  3). 

"In  the  United  States,  if  private  property  and  private  claims  are 
abandoned  by  a  treaty  of  peace,  as  was  done  by  our  treaty  of  peace  of 
1848  with  Mexico,  the  Constitution  requires  Congress  to  pay  our  citi- 
zens for  the  private  property  so  abandoned;  and  it  has  been  done." 
Gardner's  Institutes  of  American  International  Law,  New  York,  1860, 
p.  584. 

§  115.  1  X,  §§  107-108.  pp.  3.39-340,  4tb  edi- 

1  Hall's  International  Law,  chap,  [tiou,  Oxford  and  London,  1895. 

200 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  117 

stitutional  law  of  the  United  States,  says:  "The  right  to 
enter  into  treaties  at  will  is  certainly  one  of  the  most  impor- 
tant that  belong  to  States.  As  all  States  are  equal,  they  all 
have  the  same  capacity  to  contract  with  other  bodies  politic. 
Deprive  a  nation  of  any  portion  of  this  capacity,  and  we 
would  reduce  it  from  its  position  of  equality,  and  at  the  same 
time  would  restrict  its  complete  independence  and  sover- 
eignty. The  want  of  complete  power,  therefore,  to  enter 
into  treaties  is  a  sure  badge  of  inferiority  and  dependence. 
.  .  .  The  very  definition  indicates  that  all  sovereign  inde- 
pendent States  have  full  capacity  to  enter  into  whatever  treat- 
ies they  please.  The  right  of  negotiating  and  contracting 
treaties  is  one  of  the  rights  most  essential  to  sovereignty  and 
equality.  A  protected  State  may,  if  it  has  retained  its  sov- 
ereignty, enter  into  treaties  and  alliances,  unless  the  power 
has  been  expressly  renounced  or  cannot  be  exercised  consist- 
ently with  the  conditions  of  its  protection.  But  so  far  as 
the  capacity  had  been  surrendered  or  restricted,  just  so  far 
would  the  State  have  limited  its  attributes  of  sovereignty  and 
equality."  ^ 

§  117.  Constitutional  limitations  on  treaty-making. — 
"While  the  power  to  make  treaties  is  vested  in  the  highest 
power,  its  exercise  may,  of  course,  be  subject  to  certain 
constitutional  limitations.  This  is  the  case  with  the  United 
States,  the  Constitution  of  which  requires  the  ratification  of 
treaties  made  by  the  Executive  by  a  two-thirds  vote  of  the 
Senate.^  The  element  of  sovereignty  in  the  Central  Govern- 
ment, and  the  power  of  negotiation  in  the  Executive  thereof, 
however,  are  not  affected  by  such  limitations,  as  they  do  not 
detract  from  the  completeness  of  the  power,  when  it  is 
properly  and  constitutionally  exercised.  This  point  was  thor- 
oughly appreciated  as  an  elementary  principle  of  interna- 
tional law  prior  to  the  adoption  of  the  Constitution  and 
even  of  the  Articles  of  Confederation. 


§116. 

1  Poineroy's  International  Law, 
Woolsey's  Edition,  chap.  IX,  §§  2.j8 
-260,  pp.  323-.324,  Boston  and  New 
York,  1886;  See  also  views  of  Pro- 
fessor Pomeroy  as    to    extent  of 


treaty-makinji  power  of  the  United 
States,  §§  268-271  of  this  volume, 
post. 

§  117. 

1 U.  S.  Constitution,   article   II, 
§  2,  clause  2. 

201 


§  117  TKEATY-M.UvlNG  POWER  OF  THE  U.  S.         [CH.  IV. 

Yattel  Avho,  at  the  middle  of  the  eighteenth  century  was 
one  of  the  leadhig  authorities  on  international  law,  says: 
"  Public  treaties  can  only  be  made  by  the  superior  powers, 
by  sovereigns,  who  contract  in  the  name  of  the  State.  .  .  . 
The  sovereign  who  possesses  the  full  and  absolute  authority 
has,  doubtless,  a  right  to  treat  in  the  name  of  the  State  he 
represents;  and  his  engagements  are  binding  on  the  whole 
nation.  JBut  all  rulers  of  States  have  not  a  power  to  make 
public  treaties  by  their  own  authority  alone :  some  are  obliged 
to  take  the  advice  of  a  senate,  or  of  the  representatives  of 
the  nation.  It  is  from  the  fundamental  laws  of  each  State 
that  we  must  learn  where  resides  the  authority  that  is  capable 
of  contracting  with  validity  in  the  name  of  the  State."  ^  Ac- 
cording to  Halleck,  "the  treaty-making  power  of  the  State  is 
determined  by  its  own  Constitution  and  fundamental  law."  ^ 
The  views  of  Professor  Glenn  and  Professor  Lawrence  on 
this  point  are  quoted  in  the  note  to  this  section.* 


^Vattel  on  the  Law  of  Xations, 
Chitty  and  Ingi'aham,  Philadelphia 
1870,  p.  192. 

^Halleck's  International  Law, 
Sir  Sherstone  Baker's  3d  English 
edition,  London,  1893,  vol.  1, 
p.  276. 

GLENN. 

*"100.  Treaties  Defined.  Treat- 
ies are  agreements  made  and  en- 
tered into  by  one  independent  state 
with  another,  or  others,  in  con- 
formity to  law,  by  which  it  places 
itself  under  an  obligation.  The 
following  agreements  are  not  con- 
sidered treaties: 

"(a)  Agreements  entered  into  by 
a  state  with  private  individuals. 

"(6)  Agreements  concluded  be- 
tween a  state  and  the  church  upon 
religious  or  political  matters,  and 
especially  concordats  of  different 
states  with  the  pope. 

"(c)  Agreements  concluded  by 
sovereigns  or  sovereign  dynasties, 
whether  among  themselves  or  with 

202 


foreign  states,  relative  to  their 
personal  or  dynastic  pretensions  to 
the  government  of  a  country. 

"  The  three  classes  of  agreements 
mentioned  above  are  all  of  such 
a  nature  as  to  form  no  part  of  pub- 
lic international  law,  as  they  are 
either  made  between  a  state  and 
private  individuals  or  by  agents  of 
the  state  in  their  individual  char- 
acter. 

"  Essentials  of  valid  Treaty. 

"  101.  The  essentials  of  a  valid 
treaty  or  contract  between  two  or 
more  independent  states  ai-e : 

"(a)  Capacity  of  the  parties  to 
contract. 

"(6)  Duly-empowered  agents  to 
act  on  behalf  of  the  states. 

"(c)  Freedom  of  consent. 

"  (cZ)  The  object  of  the  contract 
must  be  in  conformity  to  law. 

"Every  independent  state  is  cap- 
able of  entering  into  treaties  with 
another  state  or  states,  but  the 
fundamental  law  of  a  state  may 
impose  certain    restrictions  upon 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  119 


§  lis.  Commeiicemeut  of  modern  period  of  international 

law. — Although  treaties  and  leagues  existed  in  ancient  and 
medieval  times,  they  did  not  begin  to  assume  the  prominent 
part  in  the  political  history  of  the  world  which  they  have 
since  attained,  and  now  occup}'",  until  the  middle  of  the 
seventeenth  century  and  shortly  after  Hugo  Grotius,  whose 
memory  was  so  fitly  celebrated  by  the  American  delegates 
to  the  Peace  Conference  at  The  Hague,  had  surprised  all 
thinking  men  with  his  great  book  De  Jure  Belli  ao  Pacis^ 
published  in  1625.  According  to  Dr.  Wheaton,  whose  views 
in  this  respect  have  been  generally  adopted,  the  peace  of 
Westphalia  of  1618,  which  was  evidenced  by  the  treaty  made 
at  that  time  and  place  between  the  principal  nations  of 
Europe,  may  be  chosen  as  the  epoch  from  which  the  history 
of  modern  international  law  commences ;  this  great  transac- 
tion marks  a  most  important  era,  not  only  in  the  history  of 
international  law,  but  also  in  the  progress  of  European  civili- 
zation.i 

§  119.  Disregard  of  colonies  in  treaties  made  by  Euro- 
pean powers  as  to  American  affairs. — From  that  time  it 
became  the  settled  custom  of  the  great  powers  of  Europe  to 


the  method  of  enteriug  into  such 
agreements,  which  must  be  taken 
into  consideration  by  the  parties  to 
the  contract.  In  the  United  States 
and  other  confederations  the  execu- 
tive or  treaty-making  power  cannot 
finally  conclude  treaties  without 
the  consent  of  the  legislative  bodies- 
The  latter  have  to  concur,  and  up 
to  the  time  that  this  final  consent 
of  the  concurring  body  has  been 
obtained  the  other  parties  to  the 
contract  can  withdraw  their  as- 
sent, unless  this  right  has  been 
waived."  Glenn's  International 
Law,  St.  Paul,  1895,  pp.  139-142. 

LAWRENCE. 

"We  will  now  pass  on  to  con- 
sider the  treaty-making  power  and 
its  methods  of  action,  in  so  far  as 
they  are  dealt  with  by  International 
Law.     In  each  state   the  ri^ht  of 


making  treaties  rests  with  those 
authorities  to  whom  it  is  confided 
by  the  political  constitution.  As 
long  as  there  is  some  power  in  a 
country  whose  word  can  bind  the 
whole  body  politic,  other  states 
must  do  their  international  busi- 
ness with  it,  and  have  no  right  to 
inquire  into  its  natui-e  and  the  cir- 
cumstances of  its  creation.  But 
other  important  matters  connected 
with  treaties  are  of  international 
concern.  The  first  of  these  to  be 
discussed  is  The  nature  and  neces- 
sity of  ratification.''''  Lawrence's 
Principles  of  International  Law, 
sec.  152,  Boston,  1895,  p.  284. 

§118. 

iWhoaton's  History  of  the  Law 
of  Nati<ms,  p.  69,  New  York,  1845; 
Walker's  History  of  the  Law  of 
Nations,  Cambridge,  1899,  p.  147- 
148, 

203 


§119 


TREATY-MAKING  POAVER  OF  THE  U.  S.        [CH.  IV. 


adjust  all  matters  of  dispute  at  the  conclusion  of  every  war 
by  treaties.  During  the  seventeenth  and  eighteenth  centuries 
the  American  possessions  of  the  European  powers  were  in 
the  early  stages  of  development,  their  value  was  uncertain, 
and  they  were  frequently  used  as  make-weights  in  the  adjust- 
ment of  European  disputes.  The  vast  tracts  of  sparsely  set- 
tled territory  on  the  western  side  of  the  Atlantic  were 
parceled  out,  sold,  exchanged  or  otherwise  disposed  of,  or  af- 
fected in  some  manner,  either  as  to  the  ownership  thereof,  or 
the  sovereignty  thereover,  without  any  regard  whatever  to 
the  wishes  of  the  inhabitants,  but  simply  according  to  the 
relative  strength  of  the  European  nations,  which  were  con- 
stantly engaged  in  warfare  with  each  other,  and  which  often 
found  these  possessions  available  in  forcing  settlements,  or 
obtaining  concessions,  in  their  European  controversies.  Thus 
the  treaty  of  Utrecht  in  1713,  and  the  treaty  terminating 
the  French  and  English  war  in  1763,  as  well  as  other  treaties, 
greatly  altered  the  relations  of  the  American  colonies  to  their 
European  motherlands,  notwithstanding  the  fact  that  the  col- 
onists had  no  voice  whatever  in  framing  or  ratifying  them.^ 
During  this  period  the  frequent  transfers  from  one  nation  to 
another  of  colonial  possessions,  and  sovereignty  thereover,  as 
well  as  the  frequent  similar  transfers  of  European  possessions 


§119. 

^Some  of  the  principal  treaties 
made  by  European  powers  prior  to 
178o  and  which  aiiected  American 
colonies  were  as  follows: 

(1)  The  Treaty  of  Ryswick,  be- 
tween England  and  Fiance  con- 
cluded September  10-20, 1697,  being 
"Articles  of  Peace  between  the 
most  Serene  and  Mighty  Prince 
William  the  Third,  King  of  Great 
Britain,  and  the  most  Serene  and 
Mighty  Prince  Lewis  the  Four- 
teenth, the  most  Christian  King, 
concluded  in  the  Royal  Palace  at 
Ryswick,  the  10-20  day  of  Sep- 
tember, 1697."  This  treaty  was 
the  conclusion  of  the  war  of  the 
Palatinate,  known  as  King  Wil- 
liam's, or  Frontenac's  War,  which  I 

204 


was  one  of  the  contests  finally  re- 
sulting in  the  overthrow  of  the 
French  power  in  America.  By  Sec- 
tion 7  it  is  provided  as  follows: 

"  The  most  Christian  King  shall 
restore  to  the  said  King  of  Great 
Britain,  all  countries,  islands,  forts, 
and  colonies,  wheresoever  situated, 
which  the  English  did  possess  be- 
fore the  declarati(m  of  this  present 
war.  And  in  like  manner  the  King 
of  Great  Britain  shall  restore  to 
the  most  Christian  King  all  coun- 
tries, islands,  forts,  and  colonies, 
wheresoever  situated,  which  the 
French  did  possess  before  the  said 
declaration  of  war;  and  this  resti- 
tution shall  be  made,  on  both  sides, 
within  the  space  of  six  months,  or 
sooner  if  it  can  be  done.     .     .     ." 


CH.  IV.]    TKEATY-MAKING  POWER  OF  FEDERATIONS.       §  119 


firmly  established,  as  a  principle  of  international  law,  the 
right  of  sovereign  powers  to  negotiate  and  conclude  treaties 
affecting  territory,  and  the  transfer  thereof,  by  and  through 
the  highest  sovereign  power  having  jurisdiction  over  the 
transferred  territory,  without  regard  to  the  wishes  of  the 
people,  or,  as  it  has  been  lately  expressed,  "  the  consent  of 


Section  8  provided  fortlie  formali- 
ties in  connection  with  the  trans- 
fer. For  a  summary  of  this  treaty 
and  references  to  the  authorities 
rehiting  thereto  see  Macdonald's 
Select  Charters  of  American  His- 
tory, pp.  222,  223.  See  also  Chal- 
mers' Collection  of  Treaties,  vol.  I, 
pp.  332-340. 

(2)  The  Treaty  of  Utrecht,  be- 
tvpeen  England  and  France,  March 
31-April  11,  1713,  being  "The 
Treaty  of  Peace  and  Friendship  be- 
tween the  most  Serene  and  most 
Potent  Princess  Anne,  by  tiie  grace 
of  God,  Queen  of  Great  Britain, 
France,  and  Ireland,  and  the  most 
Serene  and  most  Potent  Prince 
Lewis  the  XlVth,  the  most  Chris- 
tian King,  concluded  at  Utrecht, 
the  31-11  day  of  March-April,  1713." 
This  treaty  was  concluded  between 
France  and  Great  Britain  on  the 
termination  of  the  war  of  the  Span- 
ish succession,  which  in  America 
was  known  as  Queen  Anne's  War. 
Arts.  X-XV  (quoted  at  length  in 
Macdonald's  Select  Charters)  relate 
to  the  restoration  by  France  to 
Great  Britain  of  Hudson  Bay  and 
Newfoundland,  France  retaining 
Canada.  It  apjiears  in  Chalmers' 
Collection  of  Treaties,  vol.  I,  pp. 
340-300.  See  also  Macdonald's  Se- 
lect Charters  of  American  History, 
pp.  229-232. 

(3)  The  Treaty  of  Aix-la-Cha- 
pelle,  October  18,  1748,  between 
England,  France,  The  Netherlands, 
and  other  powers,  being  "  The  De- 
finitive Treaty  of  Peace  and  Friend- 


ship between  his  Britannic  Ma- 
jesty, the  most  Christian  King,  and 
the  States  General  of  the  United 
Provinces;  concluded  at  Aix-la- 
Chapelle,  the  18th  day  of  October, 
N.  S.  1748;  to  which  the  Empress, 
Queen  of  Hungary,  the  Kings  of 
Spain  and  Sardinia,  the  Duke  of 
Modena,  and  the  Republic  of  Genoa, 
have  acceded."  By  this  treaty,  at 
the  conclusion  of  the  War  of  the 
Austrian  Succession,  known  in 
America  as  King  Geoige's  War, 
Art.  V  provided: 

"  V.  All  the  conquests  that  have 
been  made  since  the  commence- 
ment of  the  war,  or  which,  since 
the  conclusion  of  the  preliminary 
articles,  signed  the  30th  of  April 
last  may  have  been  or  shall  be 
made,  either  in  Europe,  or  the  East 
or  West  Indies,  or  in  any  other  part 
of  the  world  whatsoever,  being  to 
be  restored  without  exception,  in 
conformity  to  what  was  stipulated 
by  the  said  preliminary  articles, 
and  by  the  declarations  since 
signed ;  the  high  contracting  parties 
engage  to  give  orders  immediately 
for  proceeding  to  that  restitu- 
tion.    ..." 

Art.  IX  provided  for  the  details 
for  the  restoration  of  the  conquered 
territory.  An  abstract  of  this 
treaty,  together  with  memorandum 
of  authorities  in  regard  thereto, 
will  be  found  in  Macdonald's  Select 
Charters  of  American  History, 
pp.  251-253.  See  also  Chalmers' 
Collection  of  Treaties,  vol.  I,  pp. 
424-442. 

205 


§  120 


TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  IV. 


the  governed,"  which  was  discussed  at  length  in  the  preced- 
ing chapter.^ 

§  120.  Treaty-making  power  of  Great  Britain  vested  in 
the  Crown. — This  treaty-making  power,  as  it  was  exercised 
prior  to  the  Confederation  and  has  ever  since  been  exercised 
by  European  powers,  is  probably  the  most  far-reaching  power 
and  the  highest  prerogative  that  still  remains  vested  in  the 
Crown  in  those  countries  in  which  constitutional  government 
has  been  combined  with  monarchical  institutions. 

Notwithstanding  the  great  constitutional  liberties  of  Eng- 
land, the  treaty-making  power  still  remains  in  the  British 
crown,  and,  according  to  Halleck,  "  In  Great  Britain  the 
treaty-making  power  is  a  branch  of  the  prerogative  of  the 
Crown,  has  in  theory  no  limits."  He  however  qualifies  this 
by  the  statement  that  Parliament,  by  its  power  of  legislation, 
may  render  a  treaty  ineffectual  by  refusing  either  to  appro- 
priate the  money  or  to  enact  the  legislation  necessary  to 
carry  it  into  effect.^    The  views  of  one  of  the  leading  author- 


(4)  The  Treaty  of  Paris,  Febru- 
ary 10,  1763,  between  England, 
France,  Spain  and  Portugal,  being 
"The  Definitive  Treaty  of  Peace 
and  Friendship,  between  his  Bri- 
tannic Majesty,  the  most  Christian 
King,  and  tlie  King  of  Spain;  con- 
cluded at  Paris,  the  10th  day  of 
February,  1763.  To  which  the  King 
of  Portugal  acceded  on  the  Same 
Day."  This  treaty  was  made  on 
the  termination  of  the  Seven  Tears' 
War,  known  in  America  as  the 
French  and  Indian  War.  The  arti- 
cles relating  to  America,  by  which 
Great  Britain  practically  acquired 
all  of  the  French  possessions,  with 
the  exception  of  some  islands,  and 
by  which  Great  Britain  restored 
Cuba  to  Spain,  and  Spain  trans- 
ferred Florida  to  Great  Britain,  are 
Arts.  IV-IX  XVII-XX.  An  ab- 
stract of  this  treaty  and  the  articles 
relating  to  America  and  references 
to  the  authorities  will  be  found  in 
Macdonald's    Select    Charters    of 

206 


American  History,  pp.  261-266.  See 
also  Chalmers'  Collection  of  Treat- 
ies, vol.  1,  pp.  467-483. 

(5)  There  was  a  treaty  of  offensive 
and  defensive  alliance  between 
France  and  Spain  signed  August  15, 
1761,  and  a  secret  treaty  between 
France  and  Spain  concluded  No- 
vember 3,  1762,  ceding  Louisiana 
and  New  Orleans  to  Spain,  the  ces- 
sion being  to  compensate  Spain  for 
the  loss  of  Florida  which  Spain 
ceded  to  Great  Britain. 

(6)  See  also  the  treaties  between 
Great  Britain  and  France  and  Great 
Britain  and  Spain  made  Septem- 
ber 3,  1783,  at  the  same  time  as 
the  treaty  with  the  United  States. 
Snow's  American  Diplomacy,  pp.  1- 
11. 

2  See  chap.  II,  §§  46-49,  ante. 

§120. 

1  Halleck's  International  Law. 
See  Sherstone  Baker's  3d  English 
edition,  London,  1893,  vol.  1,  p.  308. 


CH.  IV.]    TREATY-FLAKING  POWER  OF  FEDERzVTIONS.        §  120 

ities  on  Crown  prerogatives  are  quoted  in  the  notes  to  this 
section.^ 

2  ANSON    ON    THE    CROWN. 

"  Sec.  3.  War,  Peace  and  Treaties.  The  Queen,  acting  on  the  advice 
of  her  Ministers,  makes  war  and  peace.  The  House  of  Commons  may 
refuse  supplies  for  a  war,  or  either  House  may  express  its  disapproval 
by  resolutions  condemnatory  of  the  ministerial  policy,  or  by  address  to 
the  Crown,  or  by  making  the  position  of  the  ministry  in  otiier  ways  un- 
tenable: but  Parliament  has  no  direct  means  either  of  bringing  about 
a  war  or  of  bringing  a  war  to  an  end. 

"  Nor  does  a  decided  expression  of  opinion  by  the  House  of  Commons 
always  (tverbear  the  policy  of  a  ministry.  In  1782  a  resolution  of  the 
House  of  Commons,  followed  by  an  address  to  the  Crown,  caused 
Lord  North  to  take  steps  to  end  the  war  with  the  American  Colonies; 
but  in  1857  a  resolution  of  the  House,  condemnatory  of  the  war  with 
China,  caused  Lord  Palmerston  to  appeal  to  the  country,  with  the  result 
that  a  majority  of  his  supporters  were  returned  at  a  general  election. 

"  The  prerogative  of  the  Crown  in  making  peace  is  so  much  involved 
in  questions  as  to  the  prerogative  in  making  treaties  that  the  two  must 
be  dealt  with  together.  Parliament  has  only  indirect  means  of  bring- 
ing a  war  to  a  close,  but  it  is  hard  to  conceive  of  a  peace  concluded 
simply  by  a  cessation  of  hostilities  and  mutual  assurances  of  amity. 
Some  engagements  must  be  entered  into  or  territory  ceded,  and  a 
question  arises  in  this  form:  No  one  but  the  Crown  can  bind  the 
community  by  treaty,  but  can  the  Crown  invariably  do  so  without  the 
co-operation  of  Parliament  ? 

"This  much  appears  to  be  certain;  that  where  a  treaty  involves 
either  a  charge  on  the  people  or  a  change  in  the  law  of  the  land  it  may 
be  made,  but  cannot  be  carried  into  effect,  without  the  sanction  of  Par- 
liament. Such  treaties  are  therefore  made  subject  to  the  approval  of 
Parliament  and  are  submitted  for  its  approval  before  ratification,  or  rati- 
fied under  condition. 

"Such  are  treaties  of  commerce  which  might  require  a  change  in  the 
character  or  the  amount  of  duties  charged  on  exported  or  imported 
goods:  or  extradition  treaties  which  confer  on  the  executive  a  power 
to  seize,  take  up  and  hand  over  to  a  foreign  state,  persons  who  have 
committed  crime  there  and  taken  refuge  here. 

"The  question  whether  the  Crown  can,  by  treaty  merely,  extend  to 
foreigners  immunities  from  the  law  of  the  land,  which  would  affect 
the  private  rights  of  citizens,  was  raised  in  the  case  of  the  Parlement 
Beige. 

"It  was  alleged  in  that  case  that  the  Queen  had  by  convention  with 
the  King  of  the  Belgians,  conferred  upon  a  shij),  assumed  by  the  Court 
to  be  a  private  ship  engaged  in  trade,  the  immunities  of  a  public  ship, 
or  ship  of  war,  so  as  to  disentitle  a  British  subject  from  proceeding 
against  lier  for  injuries  sustained  in  a  collision.  Sir  liobert  Phillimore 
held  that  the  treaty-making  prerogative  did  not  extend  this  length 
and  gave  judgment  against  the  ship.     His  decision  was  reversed  by  the 

207 


§  121  TREATY-:\rAKING  POWER  OF  THE  U.  S.         [CH.  IV. 

§  liM.  Colonies  have  no  treaty-making  power  except 
thronj^Ii   tiie   Crown. — The    principle,  however,    that   the 

Court  of  Appeal,  but  on  a  different  ground,  namely,  that  the  Parlement 
Belije  was  a  public  ship,  although  uot  a  ship  of  war,  being  used  for  a 
uaiioual  puri)Ose,  the  transmission  of  mails.  The  Court  carefully  ab- 
stained from  expressing  any  opinion  on  the  point  on  which  Sir  Robert 
Phillimore  mainly  rested  his  judgement. 

"  The  same  question  was  raised,  and  evaded,  in  Walker  vs.  Baird.  The 
working  of  a  lobster  factory  on  the  coast  of  Newfoundland  was  stopped 
by  an  officer  intrusted  with  the  enforcement  of  an  agreement  made  be- 
tween the  Queen  and  the  Goverunieut  of  France.  The  owner  of  the 
factory  brought  an  action,  and  it  was  held  to  be  no  defence  to  allege 
that  the  conduct  of  the  officer  was  '  an  act  of  state.'  Whether  or  no  it 
could  be  justified  by  the  treaty-making  power  of  the  Crown  was  dis- 
cussed but  not  settled,  inasmuch  as  the  statement  of  defense  assumed 
that  the  mere  allegation  that  the  acts  were  done  in  pursuance  of  a  treaty 
took  the  matter  out  of  the  cognizance  of  the  Court.  This  was  not  the 
view  of  the  Judicial  Committee. 

"  It  was  admitted  that  the  Crown  '  could  not  sanction  an  invasion  by 
its  officers  of  the  rights  of  private  individuals  whenever  it  was  necessary 
in  order  to  compel  obedience  to  the  terms  of  a  treaty.' 

"  •  Whether  the  power  contended  for  dues  exist  in  the  case  of  treaties 
of  peace,  and  whether  if  so  it  exists  equally  in  the  case  of  treaties  akin 
to  a  treaty  of  peace,  or  whether  in  both  or  either  of  these  cases  inter- 
ference with  private  rights  can  be  authorized  otherwise  than  by  the 
legislature,  are  grave  questions  upon  which  their  Lordships  do  not  find 
it  necessary  to  express  an  opinion,' 

"  The  extent  of  the  royal  prerogative  as  regards  the  cession  of  terri- 
tory has  been  discussed  with  vehemence  of  late,  and  left  unsettled. 
Various  limitations  have  been  alleged.  It  is  said  that  the  Queen  may 
cede  territories  acquired  by  conquest,  or  Crown  colonies,  but  not  other 
territory,  that  she  may  not  cede  territory  in  respect  of  which  Parlia- 
ment has  legislated,  that  her  powers  of  cession  at  the  end  of  a  war  are 
different  fiom  and  larger  than  her  powers  in  time  of  peace.  But  this 
much  is  clear,  that  there  is  no  authority  beyond  dicta  of  lawyers,  ex- 
pressed in  Parliamentary  debate  or  otherwise,  for  any  such  limitation 
on  the  powers  of  the  Crown  as  has  been  alleged. 

"In  1876  a  case  came  before  the  Judicial  Committee  of  the  Privy 
Council  in  which  the  High  Court  of  Bombay  had  held,  for  the  purposes 
of  its  judgment,  that  territory  had  been  ceded  and  that  the  Crown  had 
no  power  to  make  such  cession  in  time  of  peace  without  consent  of  Par- 
liament. The  Judicial  Committee  reversed  the  judgment  of  the  Indian 
Court,  holding  that  what  had  taken  place  did  not  amount  to  a  cession, 
but  their  Lordships  expressly  stated  that  they  entertained  grave  doubts 
'as  to  the  soundness  of  the  general  abstract  doctrine  laid  down.' 

"  In  1890  the  Queen  in  concluding  a  treaty  with  the  Emperor  of  Ger- 
many, which  provided  among  other  things  for  the  cession  of  Heligoland 
to  the  Emperor,  was  advised  by  her  Ministers  to  make  the  cession  con- 

208 


CH.  IV.]    TREATY-MAKIXG  POWER  OF  FEDERATIONS.       §  121 

treaty-making  power  is  vested  in  the  Crown,  and  does  not 
reside  in  any  other  department  of  Government,  executive  or 

ditional  on  the  approval  of  Parliament.  This  invitation  to  Parliament 
to  sh:ire  in  tlie  exercise  of  tlie  prerogative  rights  of  the  Crov?u,  and 
therewitli  to  assume  the  responsibilities  of  the  Executive,  was  much 
criticised  in  debate.  Tlie  state  of  the  question  was  most  fully  and 
clearly  put  by  Mr.  Gladstone: — 

"  '  There  is  one  thing  which  I  think  is  still  higher  than  the  dicta  of 
legal  authorities,  in  this  important  question,  and  it  is  our  long,  uni- 
form and  unbroken  course  of  practice.  It  is  one  thing  to  stand  upon 
the  opinion  of  an  ingenious  or  even  a  learned  man:  it  is  another  thing 
to  cite  the  authority  of  an  entire  State,  signified  in  practical  conclu- 
sions, after  debate  and  discussion  in  every  possible  form,  all  bearing  in 
one  direction,  and  stamped  witli  one  and  the  same  character.  It  is 
hardly  possible,  I  believe,  to  conceive  any  kind  of  territory — colonies 
acquired  by  conquest,  colonies  acquired  by  settlement,  with  representa- 
tive institutions  or  witliout  representative  institutions — it  is  not  possi- 
ble to  point  out  any  class  of  territory  where  you  cannot  show  cases  of 
cession  by  the  Crown  without  the  authority  of  Parliament.' 

"  The  precedent  is  an  unfortunate  one.  Either  House  of  Parliament 
can  always  signify  its  disapprobation  of  a  treaty,  and  a  ministry  canal- 
ways,  if  strong  enough,  procure  a  vote  expressive  of  approval.  But  to 
make  the  ratification  of  a  treaty  depend  upon  the  goodwill  of  a  popular 
assembly  seems  to  be  an  abnegation  on  the  part  of  the  Executive  of  a 
responsibility  which  Ministers  ought  to  be  ready  to  assume  on  behalf  of 
the  Crown. 

"  Sec.  4.  Foreign  Jurisdiction. 

"Tlie  Queen  has  power  '  by  treaty,  capitulation,  grant,  usage,  suffer- 
ance, and  other  lawful  means,'  to  exercise  jurisdiction  within  divers 
foreign  countries. 

"  The  history  of  foreign  jurisdiction  of  this  nature  begins  with  the 
Levant  Company,  which  obtained  a  charter  in  1.581,  renewed  in  1606 
and  1662,  conferring  power  to  api)oint  consuls  who  should  administer 
justice  between  merchants  'in  all  places  in  the  dominion  of  the  Grand 
Seignior,  and  in  other  places  in  the  Levant  Seas.'  By  capitulations 
made  with  the  Ottoman  Porto  suits  between  subjects  of  the  Crown 
were,  throughout  the  territories  specified  in  the  charter,  to  be  decided 
by  the  judges  therein  described,  and  not  by  the  local  Courts. 

"  Usage  appears  to  have  extended  this  jurisdiction  from  cases  in  which 
both  parties  were  British  subjects,  to  cases  in  which  tlic  defendant  only 
was  a  British  subject,  and  to  cases  of  crimes  committed  by  British  sub- 
jects. 

"  When  the  Levant  Company  ceased  to  exist  it  became  necessary  to 
provide  for  the  exercise  of  this  jurisdiction  otherwise  than  by  the  Com- 
pany's charter,  and  perhaps  also  some  doubts  had  arisen  as  to  the  power 
of  the  Crown  to  create  such  jurisdiction  by  mere  exercise  of  the  pre- 
rogative. In  1843  began  the  series  of  Foreign  Jurisdiction  Acts,  which 
are  now  consolidated  in  the  Act  of  1890  (53  &  54  Vict.  c.  37).     The  pur- 

14  209 


§  121  TREATY-IMAKING  POWER  OF  THE  U.  S.        [CH.  IV. 

legislative,  central  or  colonial,  continues  to-day  as  a  recog- 
nized rule  in  the  government  of  Great  Britain  and  its  col- 
onies.^    Notwithstanding  the  apparent  independence  of  the 

port  of  these  Acts  has  been  to  give  to  the  Crown  full  power  to  provide 
by  Order  in  Council  for  the  exercise  of  such  jurisdictions,  wherever 
'by  treaty,  capitulation,  grant,  usage,  sufferance,  and  other  lawful 
means,'  they  have  been  acquired  or  have  come  into  existence. 

"Foreign  jurisdictions  exercised  in  consular  courts  exist  at  the  pres- 
ent time  (1)  in  civilized  independent  states  by  virtue  of  express  treaty, 
as  in  Turkey,  Persia,  China  and  Japan;  (2)  in  protected  states  with  a 
settled  form  of  government,  as  in  the  protected  African  communities, 
where  the  relation  of  suzerain  and  dependent  state  involves  such  a  ju- 
risdiction; (3)  in  countries  with  no  settled  form  of  government,  as  in  the 
African  spheres  of  influence,  or  in  the  Pacific  islands. 

"jWhere  such  a  jurisdiction  takes  its  origin  from  ti'eaty,  its  extent 
and  the  persons  over  whom  it  may  be  exercised  must  be  the  matter  of 
express  agreement.  In  the  other  cases,  the  exercise  of  jurisdiction 
over  others  than  the  Queen's  suhjects  must  be  a  question  of  interna- 
tional law,  which  I  do  not  propose  to  discuss. 

"  It  is  enough  here  to  call  attention  to  these  foreign,  or  consular  ju- 
risdictions, and  to  point  out  the  three  stages  by  which  they  come  into 
being: — 

"(1)  The  treaty  or  rule  of  international  law  which  renders  their  ex- 
istence possible; 

"  (2)  The  Statute  which  gives  and  defines  the  power  by  which  the 
Queen  creates  them ; 

"(3)  The  Order  in  Council  by  which  they  are  in  fact  created,  and 
their  extent  prescribed  as  to  the  law  to  be  administered  and  the  per- 
sons who  are  to  be  subject  to  it."  Anson's  Law  of  the  Constitution, 
Part  II,  The  Crown,  2d  Edition,  London,  1896,  pp.  296  to  302. 

§121. 

1 "  Sec.  4.  As  a  colony,  a  possession,  or  a  dependency  constitutes  only 
a  part  of  the  State,  it  cannot  in  itself  be  regarded,  in  international  law, 
as  a  distinct  political  organization.  Hence,  any  public  or  private  cor- 
poration, created  by,  and  deriving  its  authority  from,  a  State  cannot  of 
itself  constitute  a  separate  and  independent  sovereignty.  Thus,  the 
East  India  Company,  although  exercising  the  sovereign  powers  of  peace 
and  war,  with  respect  to  the  native  princes  and  people,  acted  in  sub- 
ordination to  the  supreme  power  of  the  British  Empire,  and  was  rep- 
resented by  the  British  Government  in  all  its  relations  with  foreign 
sovereigns  and  States. 

"Sec.  5.  The  mere  fact  of  dependence,  however,  does  not  prevent 
a  State  from  being  regarded  in  international  law  as  a  separate  and  dis- 
tinct sovereignty,  capable  of  enjoying  the  rights  and  incurring  the  ob- 
ligations incident  to  that  condition.  Much  more  importance  is  attached 
to  the  nature  and  character  of  its  connection  with  other  States,  and 
the  degree  and  extent  of  its  dependence.  Thus,  many  States,  regarded 
as  sovereign,  do  not  exercise  the  right  of  self-government  entirely  in- 

210 


CH.  IV.]   TEEATY-MAKING  POWER  OF  FEDERATIONS.       §  122 

self-governing  colonies  of  Great  Britain,  not  one  of  them  pos- 
sesses any  treaty- making  power.  The  only  difference  be- 
tween that  power  as  it  has  existed  for  centuries,  and  was 
exercised  in  regard  to  tbe  American  Colonies  prior  to  the  Rev- 
olution, and  as  it  is  exercised  to-day,  is  that  the  Crown  rec- 
ognizes the  necessity  of  acceding  to  the  wishes  and  expressed 
desires  of  the  colonies,  and,  therefore,  does  not  attempt  to 
force  treaties  upon  them  without  the  prior  assurance  that 
the  stipulations  entered  into  with  foreign  governments  will 
be  acceptable  to  the  colonies  affected  thereby.  The  adop- 
tion of  this  policy  however,  cannot  be  construed  as  an  admis- 
sion on  the  part  of  the  Crown  that  the  treaty-making  power 
has  been  in  any  way  diminished,  or  that  the  Crown  does  not 
possess  the  power  and  the  right  to  exercise  it  in  every  pos- 
sible manner  and  to  its  full  extent.  At  the  present  time  all 
treaties  between  Great  Britain  and  other  powers  which  affect 
any  of  the  colonies,  even  though  they  may  relate  exclusively 
to  a  single  colony,  are  negotiated  through  the  Foreign  Office 
in  London,  by  the  British  Ambassador  to  the  other  contract- 
ing government,  or  by  commissioners  specially  appointed  for 
the  purpose  by  the  Crown,  and  whose  instructions  emanate 
from  the  Foreign  Office ;  while  as  a  matter  of  form,  practice 
and  policy,  due  regard  is  generally,  as  it  always  should  be, 
paid  to  the  wishes  of  the  colonies,  there  is  no  instance  of  a 
treaty  being  independently  negotiated  or  concluded  by  any 
one  of  them  with  any  sovereign  power,^ 

§  122.  Status  of  Dominion  of  Canada  as  to  treaty-making 
power. — There  is  no  treaty-making  power  in  the  executives, 
or  in  the  Parliaments,  of  the  Dominion  of  Canada  or  of  any 
of  the  Provinces  composing  that  Dominion  ;  no  matter  how 
exclusively  the  subject  of  any  treaty  stipulation  may  affect 
Canada  and  Canadian  interests,  the  treaty  in  order  to  have 
any  legal  effect  whatever  must  be  concluded  between  the 

dependent  of  other  States,  but  have  their  sovereignty  limited  and  quali- 
fied in  various  degrees,  either  by  the  character  of  their  internal  con- 
stitution, by  stipulations  of  unequal  treaties  of  alliance,  or  by  treaties 
of  protection  or  of  guarantee  made  by  a  third  Power."  Halleck's  In- 
ternational Lavr,  Baker's  3d  English  edition,  London,  1893,  vol.  1, 
pp.  67-68. 

*See  instances  referred  to  in  footnotes  to  §  122,  post. 

211 


§  122  TREATY-^IAKIXG  POWER  OF  THE  U.  S.         [CH.  IV. 

other  contmcting  sovereign  power  and  His  Britannic  Majesty. 
This  is  because  the  Dominion  of  Canada  is  not  a  fully  sover- 
eign State.  A  treaty  negotiated  by  the  Secretary  of  State 
of  the  United  States  and  the  British  Ambassador  relating  to 
Canadian  matters  might  be  ratified  by  the  Senate  and  by 
the  Foreign  Office  in  London ;  if  it  were  unacceptable  to  the 
Canadian  Parliament  the  necessary  legislation,  or  appropria- 
tions, to  carry  it  into  effect  might  not  be  passed  ;  in  that  man- 
ner the  final  effect  of  an  unsatisfactory  treaty  might  be  de- 
feated and,  therefore,  as  a  matter  of  practice  and  policy,  the 
treaty-making  power  is  not  now,  as  a  general  rule,  exercised 
by  the  British  Crown  except  through  the  agency  of  Commis- 
sioners representing  the  colonies  whose  interests  are  to  be 
affected ;  the  final  exchange  of  ratifications  of  negotiated 
treaties  is  also  generally  withheld  until  the  Parliaments  of  the 
colonies  affected  have  expressed  their  approval.^  Notwith- 
standing this  practice,  however,  the  principle  remains  unaf- 
fected, that  the  treaty  is  concluded  by  the  highest  sovereign 
power,  and  not  through  the  colonial  government.  The  ne- 
gotiating commissioners  always  hold  their  powers  from  the 
Crown,  and  not  from  any  colonial  authority ;  in  fact  if  nego- 
tiations in  regard  to  a  treaty  affecting  onl}''  colonial  interests 
were  commenced  by  any  nation  with  persons  claiming  to 
represent  any  colony  of  Great  Britain,  the  first  step  would  be 
the  examination  of  the  powers  of  the  plenipotentiaries,  and 
only  such  commissions,  or  as  they  are  called  in  diplomatic 
terms,  full  powers,  as  emanated  from  the  Foreign  Office  at 
London  with  the  R03' al  approval,  and  so  certified  by  the  Sec- 
retary of  Foreign  Affairs  of  the  Imperial  Government,  would 
be  accepted  as  authority  for  the  continuance  of  the  negotia- 
tions.^ 


§  122. 

1  After  the  treaties  of  Washington 
of  1871,  legislation  of  the  Dominion 
of  Canada  and  of  the  Provinces  was 
necessary  to  carry  out  the  provi- 
sions therein  as  to  fisheries  and  the 
reciprocal  custom  provisions  as  to 
free  entry  of  fish  products.  See 
U.  S.  Foreign  Relations  under  Great 
Britain  for  years   1871,   1872   and 

212 


1873.  After  the  Bayard-Chamber- 
hiin  treaty  of  1888  had  been  con- 
cluded in  Washington,  it  was  dis- 
cussed in  the  Dominion  Parliament 
at  great  length  before  the  consent 
of  the  Dominion  was  transmitted 
to  the  Imperial  Government. 
2  There  have  been  several  instances 
in  which  treaties  affecting  Canadian 
interests  have  been  concluded  be- 


CH.  IV.]    TREATY-MAKING  POWER  OP  FEDERATIONS.       §  123 

§  123.  Concrete  example  of  above  principles To  take 

a  concrete  example :  Suppose  that  the  State  of  New  York  and 
the  Province  of  Ontario  desired  to  enter  into  some  reciprocal 


tweea  the  United  States  and  Great 
Britain.  I,  The  Marcy-Elgin  re- 
ciprocity treaty  of  1854;  II.  The 
Treaty  of  Washington  of  1871, 
which,  however,  related  to  matters 
other  than  Canadian,  notably  the 
Alabama  claims;  III.  The  Bayard- 
Chamberlain  fisheries  treaty  of 
1888  which  was  not  ratified  by  the 
Senate  of  the  United  States  and 
therefore  never  became  effectual; 
IV.  There  was  also  a  joint  High 
Commission  appointed  in  1898 
which  has  not  yet  concluded  any 
treaty  but  which  was  appointed  to 
consider  Canadian  matters  exclu- 
sively. 

In  all  cases  the  plenipotentiaries 
were  appointed  by  the  Crown  and 
held  their  powers  from  the  secre- 
tary of  foreign  affairs.  In  every 
case  the  British  Commissioners  in- 
cluded Canadians,  but  the  authority 
to  negotiate  was  derived  from  the 
Imperial  and  not  the  Dominion 
Government. 

The  "full  powers"  of  the  Com- 
missioners are  headed:  "Victoria, 
Keg.-Victoria,  by  tlie  Grace  of 
God,  Queen  of  the  United  Kingdom 
of  Great  Britain  and  Ireland,  De- 
fender of  the  Faith,  &c.,  &c.,  &c., 
To  All  and  Singular  to  whom  these 
Presents  shall  come.  Greeting:" 
whether  they  relate  to  general  or 
Imperial  matters  or  the  affairs  of 
Colonies.  See  Foreign  Relations 
of  U.  S.  of  1873,  p.  495,  for  a  form  of 
"full  power." 

Anolo-American  Joint  High 
Commission  of  1898. 

This  Commission  is  still  in  exist- 
ence, although  it  has  held  no  meet- 
ing since  February,  1899.     It  was 


appointed  pursuant  to  an  informal 
protocol  made  May  30,  1898.     Sub- 
sequently Commissioners  were  ap- 
pointed to  whom    "full   powers" 
were    issued    by   their    respective 
Governments.     The  United  States 
Commissioners    were    Charles  W. 
Fairbanks,   United  States  Senator 
from    Indiana    (chairman    of    the 
American    Commissions);    George 
Gray,  United  States  Senator  from 
Delaware  who  resigned  to  act  as 
Commissioner     on     the     Spanish 
Treaty  of  Peace  and  whose  place 
was  filled  by  Charles  J.  Faulkner, 
then  United  States  Senator  from 
West    Virginia;     iS'elson    Dingley, 
Maine,  chairman  of  the  Ways  and 
Means  Committee  of  the  House  of 
Representatives,  who  died  in  De- 
cember, 1898,  and  whose  place  was 
tilled  by  his  successor  as  such  chair- 
man, Sereno  F.  Payne,  New  York; 
John  W.  Foster,   Indiana,  former 
Secretary  of  State  and  Special  Com- 
missioner to  Great  Britain  and  Rus- 
sia in  regard  to  seal  fisheries;  John 
A.  Kasson,  Iowa,  Special  Commis- 
sioner Plenipotentiary  on  reciproc- 
ity agreements  with  foreign  coun- 
tries and  T.  Jefferson  Coolidge,  of 
Massachusetts.     The  British  Com- 
missioners were  The  Right  Honor- 
able Lord  Herschell,  G.  C.  B.,  for- 
merly  Lord   Chancellor   of    Groat 
Britain    (chairman  of  the   British 
Commission),  The  Right  Honorable 
Sir  Wilfred   Laurier,  G.  C.  M.  G., 
The  Honorable  Sir  Richard  J.  Cart- 
wright,  G.  C.  M.  G.,  The  Honorable 
Sir  Louis  H,  Davies,  K.  C.  M.  G.,  Mr. 
John  Charlton,  M.  P.,  The  Honor- 
able Sir  James  S.  Winter,  K.  C.  M. 
G.,  all  of  whom  held  high  office  in 
Canada  except  Lord  Herschell  and 
213 


§  1-^3 


TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  IV. 


arrangement,  as  the  to  preservation  of  fish  in  Lake  Ontario. 
Xeitlicr  tiie  State  nor  the  Province  could  conclude  any  treaty 
or  arrangement;  nor  could  the  State  of  New  York  and  the 
Dominion  of  Canada  do  so  ;  nor  3'^et  the  Province  of  Ontario 
and  the  United  States.  The  only  possible  method  of  obtain- 
ing the  desired  result  would  be  for  the  representatives  of  His 
Majesty  and  the  autliorized  Commissioners  of  the  United 
States,  either  through  the  Foreign  Office  and  the  State  De- 
partment, or  by  special  appointees  ad  hoc  to  meet  and  nego- 
tiate a  treat}^  between  the  United  States  and  His  Britan- 


Sir  James  S.  Winter,  the  latter  rep- 
resenting Newfoundland  on  the 
Commission. 

Cliandler  P.  Anderson,  New  York, 
was  Secretary  of  the  American  Com- 
mission, Henri  Burassa,  Quebec, 
member  of  Dominion  Parliament, 
and  W.  Chauncey  Cartwriglit  of  the 
British  Foreign  Office  were  Secre- 
taries for  the  British  Commission. 
The  author  of  this  volume  was  at- 
tached to  the  Commission  as  legal 
expert  (see  §  445,  chap.  XIV,  ^osi). 
The  Commission  met  in  Quebec  dur- 
ing August  and  September,  1898, 
and  in  Washington  during  October, 
189S-February,  1809;  it  adjourned 
indefinitely  in  February,  1899,  the 
commissioners  not  being  able  to 
agree  upon  any  practical  method 
of  adjusting  the  Alaska  boundary 
and  it  not  being  deemed  advisable 
to  continue  negotiations  in  regard 
to  other  matters  until  some  satis- 
factory solution  of  the  boundary 
questitm  was  arrived  at.  The  pro- 
ceedings of  this  Commission  have 
not  yet  been  published. 

Amongst  the  subjects  consid- 
ered by  the  Commission  were  provi- 
sions in  respect  to  the  following 
matters:  fur  seals  in  Bering  Sea 
and  waters  of  the  North  Pacific 
Ocean;  fisheries  off  the  Atlantic 
and  Pacific  coasts  and  in  the  inland 
waters  of    their  common  frontier; 

214 


the  delimitation  and  establishment 
of  the  Alaska-Canadian  boundary; 
the  transit  of  merchandise  in  trans- 
portation to  or  from  either  country 
across  intermediate  territory  of  the 
other;  the  transit  of  merchandise 
from  one  country  to  be  delivered  at 
points  in  the  other  beyond  the  fron- 
tier; the  alien-labor  laws  as  applica- 
ble to  the  subjects  or  citizens  of  the 
United  States  and  of  Canada;  min- 
ing rights  of  the  citizens  or  sub- 
jects of  each  country  within  the 
territory  of  the  other;  such  read- 
justment and  concessions  as  may  be 
deemed  mutually  advantageous,  of 
customs  duties  applicable  in  each 
country  to  the  products  of  the  soil 
or  industry  of  the  other,  upon  the 
basis  of  reciprocal  equivalents;  a 
revision  of  the  agreement  of  1817 
respecting  naval  vessels  on  the 
Lakes;  the  more  complete  defini- 
tion and  marking  of  any  part  of  the 
frontier  line,  by  land  or  water, 
where  the  same  is  now  so  insuffi- 
ciently defined  or  marked  as  to  be 
liable  to  dispute;  the  convej'ance 
for  trial  or  punishment  of  persons 
in  the  lawful  custody  of  the  officers 
of  one  country  through  the  terri- 
tory of  the  other ;  also  any  other 
unsettled  difference  referred  to  it 
by  mutual  consent  of  both  govern- 
ments. 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  125 

nic  Majesty.  This  treaty  would  have  to  be  ratified  by  the 
Senate,  and  the  ratitications  thereof  exchanged  either  in 
Washington  or  in  London,  or  elsewhere,  by  express  permis- 
sion of  the  Foreign  Office  and  the  State  Department,  before 
it  would  become  operative.  After  these  formalities  had  been 
completed,  however,  it  would  be  binding,  as  an  international 
compact,  upon  the  United  States,  and  every  State  of  the 
Union,  and  also  upon  Great  Britain,  the  Dominion  of  Canada 
and  every  Province  thereof;  and,  under  the  treaty-making 
power,  and  its  eifect  upon  subordinate  governments,  the  Par- 
liament of  Great  Britain  or  of  the  Dominion  of  Canada  and 
the  Congress  of  the  United  States  could  carry  out  the  provi- 
sions of  the  treaty  by  appropriate  legislation,  regardless  of 
whether  such  provisions  were  acceptable  either  to  the  State 
of  New  York  or  the  Province  of  Ontario. 

§  1 24.  Actual  practice  to  appoint  Commissioners  from  lo- 
cality affected — The  fact  that  it  has  been  the  actual  practice 
in  such  cases  to  appoint  Commissioners  from  the  territory 
affected,  so  that  a  treaty  can  be  framed  which  will  meet  the 
requirements  of  the  case  and  will  be  satisfactory  to  local  in- 
terests, has  given  rise  on  some  occasions  to  the  idea  that  the 
Commissioners  were  the  appointees  of  the  local  governments 
and  not  of  the  Central  Government;  such,  however,  has 
never  been,  and  never  can  be  the  case  so  long  as  the  written 
Constitution  of  the  United  States,  the  unwritten  Constitu- 
tion of  the  English  people,  and  the  principles  of  international 
law  remain  unchanged.  It  will  be  seen  by  examining  the 
precedents  referred  to  in  the  notes  to  this  and  the  preced- 
ing sections  that  the  relations  between  the  United  States 
and  the  Dominion  of  Canada,  as  well  as  of  the  several  States 
forming  the  United  States,  and  the  several  Provinces  forming 
the  Dominion,  have  always  been  negotiated,  adjusted  and  de- 
termined  by  treaties  concluded  and  ratified  in  this  manner.' 

§  125.  Territorial  origin  of  States  of  the  Union The 

States  of  the  Union,  other  than  the  thirteen  oi-iginal  States, 
and  Texas,  have  all  been  carved  out  of  territory  which  orig- 
inally belonged  either  to  some  of  the  States  individually,  as 
was  the  case  with  Vermont,  Maine,  and  Kentucky ;  from  the 
§124. 
iSee  footnote  to  §  122,  p.  213,  ante. 

215 


§125  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  IV. 

Northwest  and  other  territory  ceded  by  some  of  the  States 
to  the  Centi-al  Government,  as  was  the  case  with  Michigan, 
Indiana  and  other  States  in  the  Northwest,  and  with  Ten- 
nessee, Mississippi  and  other  States  in  the  South  ;  from  ter- 
ritory acquired  by  the  United  States  by  purchase  from  gov- 
ernments holding  it  as  a  colonial  possession,  as  was  the  case 
with  Louisiana,  Missouri  and  Florida  and  other  States  carved 
out  of  the  Louisiana  and  Florida  purchases ;  from  territory 
which  was  a  part  of  the  ceding  country  itself,  as  was  the 
case  with  the  States  carved  from  the  Mexican  cession,  such 
as  California  and  Nevada ;  it  might  be  said  that  Oregon  and 
Washington  stand  on  a  different  basis,  but  they  never  pos- 
sessed any  other  government  than  that  accorded  to  them  by 
the  United  States  which  added  them  to  its  territory  by  vir- 
tue of  the  discover}^,  and  occupation,  of  the  Columbia  River 
watershed.  As  the  thirteen  original  States  never  had  any 
local  government  which  possessed,  or  exercised,  treaty-mak- 
ing power,^  and  as  all  of  the  other  States  were  carved  out  of 
territory  which  never  had  any  local  self-government  what- 
ever, it  is  a  self-evident  proposition  that  the  treaty-making 
power  never  existed  in,  or  was  exercised  by  the  individual 
States  of  the  Union,  or  for  that  matter  by  any  power  other 
than  in  Central  or  National  government.  This  statement 
applies  to  every  State  and  Territory  of  the  Union,  with  the 
exception  of  Texas  and  Hawaii  both  of  which  actually  were 
sovereign  States  prior  to  their  being  merged  into  the  Union, 
and  each  of  which,  as  a  sovereign  State,  had  exercised  the 
treaty-making  power  prior  to  its  territory  becoming  a  part 
of  the  United  States.^ 


§125. 

iSee  §179,  posi. 

2 "That  a  union  of  the  colonies 
into  one  general  government,  for 
any  purpose,  could  not  take  place 
without  the  sanction  of  Parliament 
was  always  assumed  in  both  coun- 
tries. The  sole  instance  in  which 
a  plan  of  union  was  publicly  pro- 
posed and  acted  upon,  before  the 
Revolution,  was  in  1753-4,  when 
the  Board  of  Trade  sent  instruc- 
tions to  the  Governor  of  New  York 

216 


to  make  a  treaty  with  the  Six  Na- 
tions of  Indians;  and  the  other 
colonies  were  also  instructed  to 
send  commissioners  to  be  present 
at  the  meeting,  so  that  all  the  prov- 
inces might  be  comprised  in  one 
general  treaty,  to  be  made  in  the 
King's  name.  It  was  also  recom- 
mended by  the  home  government, 
that  the  commissioners  at  this 
meeting  should  form  a  plan  of 
uuion  among  the  colonies  for  their 
mutual    protection    and    defence 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  126 


§  123.  No  State  or  Territory  ever  possessed  treaty-mak- 
ing power  except  Texas  and  HaAvaii. — None  of  the  States 

or  Territories  composing  the  United  States,  therefore,  have 
ever  actually  possessed,  or  exercised,  any  treating-making 
power  with  the  exception  of  Texas  and  Hawaii.'  Prior  to 
the  Declaration  of  Independence  the  thirteen  original  States 
were  still  Colonies  of  Great  Britain  and  as  such  did  not  pos- 
sess any  treaty-making  power  or  even  the  right  to  negotiate 
with  any  foreign  power,  or  with  each  other. 


against  the  French.  Twenty-five 
commissionersassembled  at  Albany 
in  May,  1754,  from  New  Hampsliire, 
Massachusetts,  Rhode  Island,  Con- 
necticut, New  York,  Pennsylvania, 
and  Maryland.  In  this  body  a  plan 
of  union  was  digested  and  adopted, 
which  was  chiefly  the  work  of  Dr. 
Franklin.  It  was  agreed  that  an 
act  of  Parliament  was  necessary  to 
authorize  it  to  be  carried  into  effect. 
It  was  rejected  by  all  the  colonial 
assemblies  before  which  it  was 
brought,  and  in  England  it  was  not 
thought  proper  by  the  Board  of 
Trade  to  recommend  it  to  the  King. 
In  America  it  was  considered  to 
have  too  much  of  prerogative  in  it, 
and  in  England  to  be  too  demo- 
cratic. It  was  a  comprehensive 
scheme  of  government,  to  consist 
of  a  governor-general,  or  president- 
general,  who  was  to  be  appointed 
and  supported  by  the  crown,  and  a 
grand  council,  which  was  to  con- 
sist of  one  member  chosen  by  each 
of  the  smaller  colonies,  and  two  or 
more  by  each  of  the  larger.  Its 
duties  and  powers  related  chiefly 
to  defence  against  external  attacks. 
It  was  to  have  a  general  treasury, 
to  be  supplied  by  an  excise  on  cer- 
tain articles  of  consumption.  See 
the  history  and  details  of  the 
scheme,  in  Sparks's  Life  and 
Works  of  Franklin,  I.  176,  III.  22- 
55;  Hutchinson's  History  of  Mas- 


sachusetts, III.  2,3;  Trumbull's  His- 
tory of  Connecticut,  II.  35.5;  Pit- 
kin's History  of  the  United  States, 
I.  140-146.  In  1788,  Franklin  said 
of  it:  'The  different  and  contra- 
dictory reasons  of  dislike  to  my 
plan  make  me  suspect  that  it  was 
really  the  true  medium;  and  I  am 
still  of  opinion  it  would  have  been 
happy  for  both  sides,  if  it  had  been 
adopted.  The  colonies  so  united 
would  have  been  sufficiently  strong 
to  have  defended  themselves;  there 
would  have  been  no  need  of  troops 
from  England;  of  course  the  sub- 
sequent pretext  for  taxing  Amer- 
ica, and  the  bloody  contest  it  occa- 
sioned, would  have  been  avoided. 
But  such  mistakes  are  not  new; 
history  is  full  of  the  errors  of  states 
and  princes.'  (Life  of  Franklin, 
by  Sparks,  I.  178.)  We  may  not 
join  in  his  regrets  now."  Constitu- 
tional History  of  the  United  States, 
by  George  Ticknor  Curtis,  vol.  1, 
p.  4,  note.  For  an  abstract  of  the 
Albany  Plan  of  Union,  see  McDon- 
ald's Select  Charters,  p.  253,  et  seq. 

§  126. 

1  Both  of  these  powers  had  en- 
tered into  treaties  with  the  United 
States  and  with  other  powers.  For 
treaties  with  Hawaii  sec  U.  S.  Treaty 
Volumes,  editions  1889  and  1899, 
under  ajipropriato  headings  ;  for 
treaties  with  Texas  see  8  U.  S.  Stat, 
at  L.,  pp.  510-511. 

217 


§  127  TREATY-MAKING  POWER  OP  THE  IT.  S.        [CH.  IV. 

The  ideas  of  united  action  and  of  independence  were  so  in- 
terwoven that  no  individual  treaty-making  power  was  ever 
exercised  by  an}'^  of  the  States  prior  to,  or  after,  tlie  Declara- 
tion of  Independence.  Under  the  Articles  of  Confederation 
the  States  forbade  the  exercise  of  the  treaty-making  power 
by  themselves  and  vested  it  exclusively  in  the  Congress,'^ 
where  it  remained  until  it  was  turned  over  to  the  Federal 
Government  under  the  Constitution.  During  the  War  of 
the  Revolution  the  treaty-making  power  was  exercised  by 
the  Congress,  not  only  as  a  power  delegated  by  the  Articles 
of  Confederation,  but  also  as  a  high  act  of  sovereignty,  un- 
der the  revolutionar}'^  government.  In  fact  the  power  was 
construed  as  extending  to  the  control,  so  far  as  foreign  rela- 
tions were  concerned,  of  matters  otherwise  exclusively  within 
State  jurisdiction,  as  was  evidenced  by  some  of  the  provi- 
sions of  the  French  treaty  of  1778.^ 

§  127.  That  of  Texas  and  Hawaii  ceased  on  their  becom- 
ing part  of  the  United  States. — In  both  of  these  instances  the 
treaty-making  power,  which  existed  in  its  full  strength  and 
power  prior  to  the  respective  annexations  to  the  United  States, 
terminated  the  moment  that  the  annexations  were  completed. 


2  Article  VI  of  the  Confederation 
was  as  follows: 

"No  State  without  the  consent 
of  the  United  States  in  Congress 
assembled,  shall  send  any  embassy 
to,  or  receive  any  embassy  from, 
or  enter  into  any  conference,  agree- 
ment, alliance  or  treaty  with  any 
king,  prince  or  state;  nor  shall  any 
person  holding  any  office  of  profit 
or  trust  under  the  United  States, 
or  any  of  them,  accept  any  present, 
emolument,  office  or  title  of  any 
kind  whatever  from  any  king, 
prince  or  foreign  state;  nor  shall 
the  United  States  in  Congress  as- 
sembled, or  any  of  them,  grant  any 
title  of  nobility. 

No  two  or  more  States  shall  enter 
intoany  treaty,  confederation  oralli- 
ance  whatever  between  them,  with- 
out the  consent  of  the  United  States 

218 


in  Congress  assembled,  specifying 
accurately  the  purposes  for  which 
the  same  is  to  be  entered  into,  and 
how  long  it  shall  continue.    .    .    ." 

§  Article  IX  of  the  Confederation 
is  as  follows: 

"  The  United  States  in  Congress 
assembled,  shall  have  tlie  sole  and 
exclusive  right  and  ))ower  .  .  . 
of  sending  and  receiving  ambassa- 
dors;— entering  into  treaties  and 
alliances,  provided  that  no  treaty 
of  commerce  shall  be  made  where- 
by the  legislative  power  of  the  re- 
spective States  shall  be  restrained 
from  imposing  such  imposts  and 
duties  on  foreigners,  as  their  own 
people  are  subjected  to,  or  from 
prohibiting  the  exportation  or  im- 
portation of  any  species  of  goods  or 
commodities  whatsoever — .    ..." 

3  See  §  151,  pp.  261,  et  seq.  post. 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  127 

From  the  date  of  the  admission  of  Texas  as  a  State  of  the 
Union  and  of  the  annexation  of  Hawaii  as  a  territory,  all 
treaty-making  power  absolutely  ceased,  except  as  it  has  since 
been  exercised  through  the  Executive  Department  of  the 
Federal  Government  subject  to  the  ratification  of  the  Senate 
as  required  by  the  Constitution.  The  United  States  was 
bound  in  good  faith  to  recognize  the  obligations  in  treaties 
existing  at  the  times  of  the  annexations  and  to  make  proper 
provision  for  their  fulfilment.  All  adjustments,  however, 
have  necessarily  been  made  through  the  Central  Govern- 
ment, and  not  through  local  authorities,  and  all  commercial 
regulations  have  necessarily  been  put  under  the  control  of 
the  National  Government.^ 


§127. 

^  Texas  was  admitted  by  Joint 
Eesolution  No.  8  of  Congress  ap- 
proved March  1,  1845,  5  U.  S.  Stat. 
at  Large,  p.  797.  Tliis  resolution 
expressly  provided  that  all  ques- 
tions of  boundary  that  might  arise 
with  other  governments  should  be 
subject  to  adjustment  by  the  gov- 
ernment of  the  United  States. 

The  Hawaiian  Islands  were  an- 
nexed by  Joint  Resolution  No.  55, 
approved  July  7, 1898, 30  U.  S.  Stat. 
at  Large,  p.  797,  and  which  pro- 
vided that  "The  existing  treaties 
of  the  Hawaiian  Islands  with  for- 
eign nations  shall  forthwith  cease 
and  determine,  being  replaced  by 
such  treaties  as  may  exist,  or  as 
may  be  hereafter  concluded,  be- 
tween the  United  States  and  such 
foreign  nations.  The  municipal 
legislation  of  the  Hawaiian  Islands, 
not  enacted  for  the  fulfillment  of 
the  treaties  so  extinguislied,  and 
not  inconsistent  with  this  joint  res- 
olution nor  contrary  to  the  Consti- 
tution of  the  United  States  nor  to 
any  existing  treaty  of  the  United 
States,  shall  remain  in  force  until 
tiie  Congress  of  tlie  United  States 
shall  otherwise  determine. 


"Until  legislation  shall  be  en- 
acted extending  the  United  States 
customs  laws  and  regulations  to  the 
Hawaiian  Islands  the  existing  cus- 
toms relations  of  the  Hawaiian  Is- 
lands with  the  United  States  and 
other  countries  shall  remain  un- 
changed. 

"  The  public  debt  of  the  Repub- 
lic of  Hawaii,  lawfully  existing  at 
the  date  of  the  passage  of  this  joint 
resolution,  including  the  amounts 
due  to  depositors  In  the  Hawaiian 
Postal  Savings  Bank,  is  hereby  as- 
sumed by  the  Government  of  the 
United  States;  but  the  liability  of 
the  United  States  in  this  regard 
shall  in  no  case  exceed  four  million 
dollars.  So  long,  however,  as  the 
existing  government  and  the  pres- 
ent commercial  relations  of  the 
Hawaiian  Islands  are  continued  as 
hereinbefore  provided,  said  govern- 
ment shall  continue  to  pay  the  in- 
terest on  said  debt. 

"  There  shall  be  no  further  immi- 
gration of  Chinese  into  the  Hawa- 
iian Islands,  except  upon  such 
conditions  as  are  now  or  may  here- 
after be  allowed  by  the  laws  of  the 
United  States;  and  no  Chinese,  by 
reason    of    anything    herein   con- 

219 


§128  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  IV. 

^  12S.  Treaty-making  power  of  Oeriiiaiiy. — The  Empire 
of  Gennau}'  is  composeil  of  a  nuinber  of  principalities  which 
possessed,  or  claimed  to  possess,  full  sovereignty  prior  to  the 
formation  of  the  Confederation  and  of  the  Empire.  Under 
the  old  Korth  German  Confederation  they  were  to  some  ex- 
tent permitted  to  exercise  the  treaty-making  power  and  other 
sovereign  States,  until  a  recent  period,  were  accustomed  to 
enter  into  direct  relations  with  these  constituent  States.  All 
foreign  relations  are  carried  on  now,  however,  as  they  have 
been  since  1871,  exclusively  through  the  proper  officers  of 
the  Empire,  who  act  in  this  respect  as  personal  representa- 
tives of  the  Emperor  of  Germany.  All  the  obligations  exist- 
ing under  treaties  which  had  been  made  prior  to  the  forma- 
tion of  the  Empire  in  1871  were  assumed  by  it,  so  far  as  they 
relate  to  the  tei'ritory  of  the  constituent  States,  w^hich  origi- 
nally negotiated  them.  Since  1871  no  new  treaties  have 
been  made  by  any  of  the  constituent  governments,  and  the 
treat^Mnaking  power  of  the  entire  Empire,  and  all  of  the  con- 
stituent States,  is  exercised  exclusively  by  the  Emperor  and 
his  representatives.^  The  views  of  Professor  Burgess  as  to 
the  nature  of  the  German  constitution  and  the  prerogatives 
of  the  Emperor  are  quoted  in  the  note  to  this  section.^ 


tained,  shall  be  allowed  to  enter 
the  United  States  from  the  Hawa- 
iian Islands."  See  also  as  to  effect 
of  annexation  upon  levenue  and 
other  laws,  the  following  cases,  the 
first  two  affecting  Texas  and  the 
third  Hawaii. 

Oakhy  vs.  Bennett,  U.  S.  Sup. 
Ct.  1850, 11  Howard  33,  McLean,  J. ; 
Calkin  vs.  Cocke,  U.  S.  Sup.  Ct.  1852, 
14  Howard  227,  Xelsox,  J.;  Pea- 
cork,  it'c,  vs.  Hawaii;  Lewis  vs. 
Same,  Supreme  Ct.  Hawaii,  1899, 
12  Hawaii  27,  Frear  J. 

§  128. 

1  For  the  Constitution  of  Germany 
and  provisions  as  to  treaty-making 
power,  see  footnote  under  §  130, 
p.  224,  post. 

2  In  Chapter  III,  pages  109,  et 
aeq.,  Professor  Burgess  in  his  Po- 

220 


litical  Science  and  Constitutional 
Law,  gives  a  history  of  the  forma- 
tion of  the  Constitution  of  the 
present  German  Empire.  On 
pages  119-120,  vol.  1,  he  says: 

"  The  attempt  of  France  to  pre- 
vent the  comi)lete  union  of  all  the 
German  states  into  one  national 
state,  precipitated  that  union.  At 
the  moment  of  the  triumph  of  the 
German  arms  over  those  of  France, 
the  King  of  Bavaria  took  the  initia- 
tive. (The  diary  of  the  Emperor 
Frederic  seems  to  show  that  he  did 
so  under  considerable  pressure  from 
the  Prussians. )  The  President  of 
the  North  German  Union,  the  King 
of  Prussia,  was  already  empowered, 
by  tlie  second  paragraph  of  the 
seventy-ninth  article  of  the  Jforth 
German  constitution,  to  lay  propo- 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  129 


§  129.  Treaty-making  power  of  South  American  Coun- 
tries.— The  same  rule  applies  to  relations  established  with 


sitions  before  the  legislature  of  the 
North  German  Uuion  for  the  en- 
trance of  the  South  German  states 
or  any  of  them  into  the  Union; 
which  entrance  would  be  accom- 
plished, so  far  as  the  North  Ger- 
man Union  was  concerned,  by  a 
legislative  act.  During  the  course 
of  the  month  of  November,  1870, 
the  President  of  the  North  German 
Union  entered  into  treaties  with 
the  Grand  Dukes  of  Hesse  and 
Baden  and  with  the  Kings  of  Wur- 
temberg  and  Bavaria,  which  con- 
tained the  articles  of  union  of  these 
states  with  the  North  German  Un- 
ion and  the  pledge  to  establish  the 
German  Empire  on  the  1st  of  Janu- 
ary, 1871.  These  treaties  were  sub- 
mitted by  these  respective  Princes 
to  the  legislatures  of  their  respec- 
tive states  and  were  ratified  in  the 
manner  prescribed  by  the  constitu- 
tions of  these  respective  states  for 
making  constitutional  changes. 
The  constitution  of  the  North 
German  Union  already  specially 
provided  for  this  case,  in  Art.  7f), 
authorizing  the  Federal  Council 
and  Diet  to  ratify  such  agreements 
by  way  of  legislation.  The  consti- 
tution of  the  German  Union  or  the 
German  Empire  was  thus,  at  first, 
contained  in  several  instruments. 
This  was  clumsy  and  confused. 
The  union  of  the  several  instru- 
ments into  one  was  manifestly  nec- 
essary. After  the  representatives 
from  the  new  states  had  appeared 
in  both  the  Federal  Council  (Buti- 
desrath)  and  Diet  {Reiclista(/),  the 
chancellor  proposed  a  revision  of 
the  constitution  as  to  form.  This 
was  carried  by  a  great  majority  in 
both  bodies.  No  new  provisions 
were  introduced  into  the  organic 


law,  and  no  existing  provisions 
were  modified,  (except  a  clause 
providing  for  the  constitution  of  a 
committee  in  the  Bundesrath  for 
foreign  affairs. )  The  revision  was, 
we  may  say,  wholly  formal.  It 
bears  the  date  April  16,  1871,  while 
the  birth  moment  of  the  Empire 
must  be  placed  at  January  1,  pre- 
ceding." 

And  on  page  124,  vol.  1,  he  ex- 
presses his  views  as  to  the  unity  of 
the  German  Empire  as  follows: 

"My  view  is,  therefore,  that  the 
German  people  resident  within  the 
twenty-two  purely  German  states 
had,  by  1866,  reached  a  point  in 
their  national  develojiment  where 
the  ethnical  unity  was  bound  to 
pass  over  into  political  unity;  that 
the  Geiman  state  had  become  ex- 
istent subjectively,  as  idea  in  the 
consciousness  of  the  people,  and 
that  the  impulse  to  objectify  the 
idea  in  institutions  and  laws  was 
the  force  which  employed  the  cus- 
tomary forms  of  legality  in  the  at- 
tainment of  the  result;  but  the 
original  power  was  in  that  force, 
not  in  those  forms.  It  was  fortu- 
nate for  the  continued  existence  of 
these  that  they  proved  elastic 
enough  to  permit  the  entrance  of 
that  force.  It  was  not  compelled, 
thus,  to  cast  them  aside  and  cre- 
ate its  own  more  natural  forms. 
The  task  of  the  commentator, 
however,  is  made  much  more  diffi- 
cult on  account  of  this  fact.  He, 
and  those  who  road  him,  are  obliged 
to  i)reserve  a  constant  tension  of 
mind  in  distinguishing  these  forms 
when  filled  with  the  new  power, 
fiom  the  same  as  containing  only 
the  old  power.  Both  he  and  they 
almost  inadvertently  glide  into  the 

221 


§  1-^ 


TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  IV. 


the  Confederated  Governments  of  South  America.  Repub- 
lics composed  of  constituent  states,  and  similar  in  many  re- 
spects to  the  United  States  of  North  America  exist  in  South 
America.  The  treaty-making  power  is  in  every  instance 
vested  exclusively  in  the  central  government.  The  Argen- 
tine Republic  is  a  confederation  composed  of  several  States, 
all  of  which  exercise  local  sovereignty  in  the  same  manner 
as  the  several  States  of  this  Union  exercise  it.  The  relations 
of  all  other  nations,  however,  are  with  the  central  govern- 
ment which  possesses  exclusively  the  treaty-making  power. 
Treaties  made,  however,  are  binding  upon  the  constituent 
States   exactly  as  treaties  made  by  the  Executive  of  the 


juristic  processes,  and,  delighted 
witli  a  show  of  logical  exactness, 
forget  that  the  juristic  theoiy  will 
not  contain  the  demonstrations  of 
war  and  violence  and  the  evolu- 
tions of  power  with  which  the  birth 
moment  of  the  new  state  was  at- 
tended."    .     .     . 

"  The  Emperor  is  vested,  by 
Article  11  of  the  Imperial  constitu- 
tion, with  the  power  to  represent 
the  Empire  internationally,  and  for 
this  purpose  to  send  and  receive 
ambassadors,  to  make  agreements, 
treaties  and  alliances  with  foreign 
powers,  and  to  declare  war  and 
make  peace.  But  if  the  treaties 
touch  any  subject  already  regulated 
by  an  Imperial  law,  constitutional 
or  statutory,  then  the  consent  of 
the  Federal  Council  is  necessary  to 
their  conclusion  and  of  the  Diet 
also  to  their  validity;  and  to  every 
declaration  of  offensive  war  the 
consent  of  the  Federal  council  is 
necessary.  These  are  most  impor- 
tant and  thorough  going  limita- 
tions upon  the  treaty-making  and 
the  war  powers  of  the  Emperor. 
They  provide,  in  the  first  place, 
against  any  conflict  which  might 
arise  between  the  treaties  and  the 
constitution  and  laws,  by  requiring 
the  consent  of  the  amending  power 

222 


to  such  treaties  as  may  touch  upon 
a  provision  of  the  constitution, 
and  of  the  legislative  power  to 
such  as  may  touch  upon  a  provi- 
sion of  the  statute  law.  A  treaty 
cannot  change  a  law  in  the  Impe- 
rial system,  without  the  consent  of 
the  law-making  power,  but  a  law 
may  change  a  treaty  without  the 
consent  of  the  Emperor.  There  is, 
thus,  no  chance  for  arbitrary  ac- 
tion on  the  part  of  the  Emperor  in 
the  exercise  of  this  power.  .  .  . 
The  independent  prerogative  of 
the  Emperor,  as  international  rep- 
resentative of  the  Empire,  con- 
sists, thus,  only  of  the  powers  to 
appoint  and  to  receive  ambassa- 
dors, other  public  ministers  and 
consuls,  to  negotiate  all  treaties, 
to  conclude  treaties  of  peace  and 
such  other  treaties  as  do  not  con- 
flict with  the  constitution  and  the 
laws,  and  to  wage  defensive  war. 
The  president  of  a  republic  should 
not  be  intrusted  with  powers  less 
than  these."  Burgess'  Political 
Science  and  Constitutional  Law, 
Vol.  2,  pp.  276,  277.  It  will  be  seen 
that  the  limitations  on  tlie  German 
Emperor  are  through  the  medium 
of  the  Federal  government  and  not 
through  the  medium  of  any  of  the 
1  States. 


CH.  IV,]    TREAT Y-1VLA.KING  POWER  OF  FEDERATIONS.       §  130 

United  States,  and  ratified  by  tlie  Senate  in  accordance  with 
the  Constitution,  become  the  supreme  law  of  the  land — and 
binding  upon  the  States  of  this  Union,  and  the  inhabitants 
thereof. 

§  130.  Other  instances  of  treaty-making  power. — It  is 
hardly  worth  while  to  collate  as  a  part  of  the  text  all  of  the 
instances  in  which  treaty-making  power  is  vested  in  the 
central  government  or  the  highest  recognized  sovereign  of 
the  different  countries  <-)f  the  world. 

In  the  notes,  appended  to  this  and  the  preceding  sections, 
a  number  of  instances  are  noted  in  which  the  treaty-making 
power  has  been  lodged,  as  it  is  in  the  United  States  and  in 
Great  Britain,  in  the  Central  Government,  or  in  the  Crown.^ 

§130. 

1  NOTE  ON  THE  TREATY-MAKING  POWER  AS  EXERCISED  BY 
THE  SOVEREIGN  POWER  OF  NATIONS  OTHER  THAN  THE 
UNITED  STATES. 

The  government  which  does  not  to  some  extent  exercise  jurisdiction 
over  constituent  and  confederated  powers  is  the  exception  rather  tlian 
tlie  rule  at  the  present  time — Germany,  Belgium,  most  of  the  South  and 
Central  American  Republics,  are  all  confederations,  and  even  China  is 
to  some  extent  a  conglomeration  of  provinces,  which,  claim  to  have  a 
certain  degree  of  local  sovei-eiguty.  All  of  these  powers  are,  however, 
National  as  to  treaty-making  and  in  their  relations  with  other  nations 
internal  subdivisions  are  ignored. 

The  constitutions  of  several  foreign  powers  and  states  were  collected 
for  reference  and  use  of  the  New  York  State  Constitutional  Convention 
of  1894  under  the  title  of  "  Foreign  Constitutioxs  "  and  from  that 
convenient  handbook  the  author  has  extracted  the  following  provisions 
relating  to  the  treaty-making  power  as  contained  in  the  existing  consti- 
tutions of  Belgium,  Germany,  Japan,  Mexico,  Honduras,  Venezuela, 
and  the  Argentine  Confederation.  The  treaty-making  power  as  it  is  ex- 
ercised by  the  Crown  of  Great  Britain  is  the  subject  of  another  note. 
(See  pp.  207,  et  seq,  ante.) 

BELGIUM. 

By  the  Constitution  of  Belgium,  the  King  is  required  to  take  an 
oath  to  observe  the  Constitution  and  laws  of  the  Belgian  people,  and  to 
maintain  their  national  independence  and  the  integrity  of  their  country; 
the  legislative  power  is  vested  in  the  House  of  Representatives  and  tlie 
Senate,  but  the  treaty-making  power  is  lodged  in  the  King  by  Art.  68 
as  follows: 

"  Art.  68.  The  King  shall  command  the  land  and  naval  forces,  declare 
war,  make  treaties  of  peace,  of  alliance  and  of  commerce.  He  shall 
give  information  in  respect  to  the  foregoing  matters  to  the  two  Houses 

223 


§  130  TREATY-]MAKING  POWER  OF  THE  U.  S.        [CH.  IV. 

The  provisions  relating  to  treaties  in  the  Constitution 

as  soon  as  the  interest  and  safety  of  the  State  permit  it,  joining  there- 
with the  customary  comuiuuications. 

"Treaties  of  commerce  and  those  wliich  might  seriously  burden  the 
State,  or  individually  bind  the  Belgians,  shall  go  into  effect  only  after 
having  received  the  assent  of  the  houses. 

"No  cession,  no  exchange,  no  addition  of  territory  can  take  place 
except  by  law.  In  no  case  sliall  the  secret  articles  of  a  treaty  be  de- 
structive of  the  published  articles." 

Belgium  is  a  federal  government,  the  kingdom  being  divided  into 
nunieious  provinces,  all  of  which  have  the  right  of  local  government. 
Compilation  of  Foreign  Constitutions,  compiled  for  the  New  York  State 
Coustitutioual  Convention,  1894,  pp.  3o-5Jr;  see  p.  45. 

GERMANY. 

The  provisions  of  the  Constitution  of  the  German  Empire  relating  to 
treaty-making  are  as  follows: 

"Alt.  IV  (p.  267).  Tlie  following  matters  shall  be  under  the  supervision 
and  legislative  contiol  of  the  Empire. 

"  1.  Regulations  relating  to  migration  within  the  Empire;  matters  of 
domicile  and  settlement;  the  right  of  citizensliip;  the  issuing  and  ex- 
amination of  passports;  surveillance  of  foreigners;  trade  and  industry, 
including  insurance,  so  far  as  these  matters  are  not  already  provided 
for  by  Article  3  of  this  Constitution  (in  Bavaria,  however,  exclusive  of 
matters  relating  to  domicile  and  settlement),  and  finally  matters  relat- 
ing to  colonization  and  emigi  ation  to  foreign  countries.     .     .     . 

"  Art.  7  (p.  267).  The  organization  of  a  general  system  of  protection 
for  German  trade  in  foreign  countries;  of  German  navigation,  and  of  the 
German  flag  on  the  high  seas;  likewise  the  organization  of  a  general 
consular  representation  to  be  maintained  l)y  the  Empire.     ... 

"  Art.  11  (p.  270).  To  the  King  of  Prussia  shall  belong  the  Presidency 
of  the  Confederation,  and  he  shall  have  the  title  of  German  Emperor. 
The  Emperor  shall  represent  the  Empire  among  nations,  declare  war  and 
conclude  peace  in  the  name  of  the  same,  enter  into  alHances  and  other 
conventions  with  foreign  countries,  accredit  ambassadors  and  receive 
them. 

"  For  a  declaration  of  war  in  the  name  of  the  Empire,  the  consent  of 
the  Federal  Council  shall  be  required,  except  in  case  of  an  attack  upon 
the  territory  of  the  Confederation  or  its  coasts. 

"So  far  as  treaties  with  foreign  countries  refer  to  matters  which, 
according  to  Article  4,  are  to  be  regulated  by  imperial  legislation,  the 
consent  of  the  Federal  Council  shall  be  required  for  their  conclu- 
sion, and  the  approval  of  the  Diet  sliall  be  necessary  to  render  them 
valid.     .     .     . 

"  Art.  53  (p.  279).  The  navy  of  the  Empire  is  a  united  one,  under  the 
supreme  command  of  the  Emperor.  The  Emperor  is  charged  with  its 
constitution  and  organization;  he  shall  appoint  the  officers  and  officials 
of  the  navy,  and  in  his  name  these  and  the  seamen  shall  be  sworn  in. 

224 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.        §  130 

adopted  by  the   Southern    States  which  attempted  to  se- 

"  The  harbor  of  Kiel  and  the  harbor  of  the  Jade  are  imperial  war 
harbors. 

"  The  expenditure  required  for  the  establishment  and  maintenance 
of  the  navy  and  the  institutions  connected  therewith,  shall  be  defrayed 
from  the  treasury  of  the  Empire. 

"All  seafaring  men  of  the  Empire,  including  machinists  and  hands 
employed  in  ship-building,  are  exempt  from  serving  in  the  army,  but 
are  obliged  to  sei've  in  the  imperial  navy. 

"  The  distribution  of  requisitions  to  supply  the  ranks  of  the  navy  shall 
be  made  according  to  the  actual  seafaring  population,  and  the  number 
furnislied  in  accordance  herewith  by  each  State  shall  be  deducted  from 
the  number  otherwise  required  for  the  army.     .     .     . 

"Art.  56  (p.  280).  The  Emperor  shall  have  the  supervision  of  all  con- 
sular affairs  of  the  German  Empire,  and  he  shall  appoint  consuls,  after 
hearing  the  committee  of  the  Federal  Council  on  trade  and  commerce. 

"No  new  State  consulates  ai-e  to  be  established  within  the  jurisdic- 
tion of  the  German  consuls.  German  consuls  shall  perform  the  func- 
tions of  State  consuls  for  the  States  of  the  union  not  represented  in 
their  district.  All  the  State  consulates  now  existing  shall  be  abolished 
as  soon  as  the  organization  of  the  German  consulates  shall  be  completed 
in  such  a  manner,  that  the  representation  of  the  separate  interests  of 
all  the  federal  states  shall  be  recognized  by  the  Federal  Council  as  satis- 
factorily secured  by  the  German  consulates."  Comi)ilation  of  Foreign 
Constitutions,  compiled  for  New  York  Constitutional  Convention,  1894, 
pp.  259-286.     See  also  §  128  and  notes  thereunder,  pp.  220,  et  seq.,  ante. 

JAPAN. 

By  Article  13  of  the  Constitutiim  of  the  Empire  of  Japan,  the  Emperor 
declares  war,  makes  peace  and  conducts  treaties.  Compilation  of  For- 
eign Constitutions,  compiled  for  the  New  York  Constitutional  Conven- 
tion, 1894.  pp.  309-318;  see  p.  313. 

MEXICO. 

Mexico  is  a  federation.  The  constituticm  of  1857  defines  sovei'eignty 
in  Title  II.  as  follows: 

"Art.  39  (j).  334).  The  national  sovereignty  resides  essentially  and 
originally  in  the  people.  All  public  i)()wer  emanates  from  the  people, 
and  is  instituted  for  their  benefit.  The  people  have  at  all  times  the  in- 
alienable right  to  alter  or  modify  the  form  of  their  government. 

Art.  40.  The  Mexican  people  voluntarily  constitute  themselves  a  dem- 
ocratic, federal,  representative  republic,  composed  of  States  free  and 
sovereign  in  all  that  concerns  their  internal  government,  but  united  in 
a  federation  established  according  to  the  principles  of  this  fundamental 
law. 

"  Art.  41.  Tlie  people  exercise  their  sovereignty  by  means  of  Federal 

officers  in  cases  belonging  to  the  Federation,  and  tlir(nigh  those  of  the 

States  in  all  that  relates  to  the  internal  affnirs  of  the  States  within  the 

limits  respectively  established  by  this  Federal  Constitution,  and  by  the 

15  225 


§  130  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IV. 

cede  from  the  Uuiou  in  1861  were  similar  to  those  in  the 

special  Constitutions  of  the  States,  which  latter  shall  in  no  case  contra- 
vene the  stipulations  of  the  Federal  Compact." 

Subdivision  a  of  Article 72  B  (p.  o42)  detiuiug  the  exclusive  powers  of 
the  Senate  includes  the  ritjht  "  to  approve  the  treaties  and  diplomatic 
Conventions  which  the  Executive  may  make  with  foreign  powers." 

Amongst  the  powers  of  the  President,  (Art.  85,  sections  X.  and  XL 
p.  349)  are: 

"X.  To  direct  diplomatic  negotiations  and  to  make  treaties  with  for- 
eign powers,  submitting  them  for  the  ratiiication  of  the  Federal  Con- 
gress. 

"XI.  To  receive  ministers  and  other  envoys  from  foreign  powers." 

The  powers  of  the  judiciary  which  are  determined  by  Art.  97,  sec- 
tions VI.  and  VII.  (p.  351)  include: 

"  VI.  Civil  or  criminal  cases  that  may  arise  under  treaties  with  for- 
eign powers. 

"VII.  Cases  concerning  diplomatic  agents  and  consuls."  Compila- 
tion of  Foreign  Constitutions  compiled  for  New  York  Constitutional 
Convention,  1894,  pp.  319-356. 

HONDURAS. 

In  the  Constitution  of  the  Republic  of  Honduras  adopted  November, 
1880,  Article  73,  a  part  of  the  President's  duties  are  defined  as  follows: 

"Art.  73  (p.  304).  (1)  He  concludes  and  signs  treaties  of  peace,  of 
commerce,  of  navigation,  of  alliance,  of  neutrality,  and  other  negotia- 
tions necessary  for  the  maintenance  and  cultivation  of  good  interna- 
tional relations. 

"  (2)  He  nominates  the  diplomatic  and  consular  agents  of  the  Repub- 
lic, receives  the  Ministers,  and  admits  the  Consuls  of  foreign  nations. 

But  Congress  has  the  power,  as  provided  in  Article  45,  (p.  299, )  (3)  to 
approve  or  reject  treaties  made  with  foreign  powers.  Compilation  of 
Foreign  Constitutions,  compiled  for  the  New  York  Constitutional  Con- 
vention, 1894,  pp.  287-306. 

VENEZUELA. 

Venezuela  is  a  federation  made  up  of  a  number  of  states  each  one  of 
which  is  declared  to  be  free  and  independent  by  Article  XII.  of  the  Con- 
stitution. 

The  prerogatives  of  the  President  are  defined  by  Article  65,  (p.  431) 
subdivision  3,  "to  receive  and  welcome  public  ministers"  and  subdivi- 
sion 4,  "to  sign  the  official  letters  to  the  Sovereigns  or  Presidents  of 
other  countries.  .  ."  Article  66,  subdivision  5,  (p.  431)  "to  direct  nego- 
tiations and  celebrate  all  kinds  of  treaties  with  other  nations,  submit- 
ting these  to  the  National  Legislature;"  and  tliere  is  a  special  provision 
in  Article  116  (p.  438)  that  "the  national  executive  will  negotiate  with 
the  governments  of  America  over  treaties  of  alliance  and  confederation." 

The  Constitution  of  Venezuela  is  peculiar  in  that  it  requires  by  Arti- 
cle 109  (p.  438)  that  "in  all  international  treaties  of  commerce  and 

226 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  130 

Constitution  of  the  United  States  and  are  also  included  in 
the  notes.^ 

friendship  this  clause  will  be  inserted,  to  wit:  'All  the  disagreements 
between  the  contracting  parties  must  be  decided  without  an  appeal  to 
war,  by  the  decision  of  a  power  or  friendly  powers.'  "  Compilation  of 
Foreign  Constitutions,  compiled  for  the  New  York  Constitutional  Con- 
vention, 1894,  pp.  409-439. 

ARGENTINE    REPUBLIC. 

The  existing  Constitution  of  the  Argentine  Republic  was  adopted 
September  25,  1860. 

In  its  preamble  it  recites  that  the  representatives  in  the  constituent 
Congress  for  the  purpose  of  framing  a  Constitution  made  the  Constitu- 
tion for  the  Argentine  Nation ;  it  also  recites  that  the  provinces  form  the 
Nation;  the  Federal  Government  guarantees  to  protect  the  Republican 
form  of  government  and  to  repel  foreign  invasion  in  the  provinces. 

Many  of  the  provisions  of  the  Constitution  of  the  United  States  are 
bodily  incorporated  into  this  Constitution. 

While  every  province  can  have  its  own  Constitution  it  must  be  framed 
upon  the  basis  of  a  Republican  representative  system  of  government 
and  be  in  harmony  with  the  Federal  Constitution. 

The  provisions  in  regard  to  treaties  are  as  follows : 

"Art.  XXVII  (p.  10).  The  Federal  Government  shall  be  bound  to 
strengthen,  by  means  of  treaties,  consistent  with  the  principles  of  public 
law  estabiishetl  by  this  Constitution,  the  commercial  and  peaceful  rela- 
tions of  the  Argentine  Nation  with  foreign  countries. 

"Art.  XXVIII  (p.  11).  No  principle,  guaranty,  or  right  recognized  in 
the  preceding  articles  can  be  altered  by  the  laws  which  may  be  enacted 
to  carry  it  into  practice.     .     .     ." 

"  Art.  XXXI  ( p.  11 ).  The  present  Constitution,  the  national  laws  which 
in  pursuance  thereof  may  be  enacted  by  Congress,  and  the  treaties  with 
foreign  nations  are  the  supreme  law  of  the  nation;  and  the  provincial 
authorities  shall  be  bound  to  abide  by  them,  any  provision  in  their  own 
provincial  constitution  or  laws  to  the  contrary  notwithstanding.  This 
rule  is  not  applicable  to  the  Province  of  Buenos  Ayres  so  far  as  the  trea- 
ties ratified  after  the  compact  of  the  11th  of  November,  1859,  are  con- 
cerned." 

"  Art.  LXVII(  p.  18).  The  National  Congress  shall  have  power.  .  .  , 
(19),  To  approve  or  reject  the  treaties  concluded  with  any  foreign  na- 
tions, and  the  concordats  entered  into  with  the  Holy  See,  and  to  make 
rules  for  the  exercise  of  patronage  in  church  matters  in  the  whole  na- 
tion." 

"Art.  LXXXVI.  The  President  of  the  nation  shall  have  the  following 
powers: 

"1  (p.  2'i).  As  the  chief  magistrate  of  the  nation  he  has  in  his  charge 
the  general  administration  of  all  the  executive  business  of  the  country. 

"  2.  He  can  issue  such  instructions  and  make  such  rules  as  may  be 
2  For  note  2,  see  p.  229. 

227 


§  131  TREATY-MAKIXG  POWER  OF  THE  U.  S.        [CH.  IV. 

§  l)].  Treaty-making  poAver  as  an  attribute  of  sover- 
eignty evidenced  in  cases  of  cession  of  territory. — The  fact 

necessary  for  the  execution  of  tlie  laws  of  the  nation,  taking  care,  how- 
ever, not  to  change,  by  any  provision,  in  the  former,  the  spirit  of  the 
latter.     .     . 

"14:  (p.  24).  He  conchides  and  signs  the  treaties  of  peace,  commerce, 
navigation,  alliance,  limits,  and  neutrality,  as  well  as  the  concordats,  and 
all  other  arrangements  or  agreements  reqviiied  for  the  maintenance  of 
friendly  relations  with  the  foreign  powers.  lie  also  receives  the  min- 
isters accredited  by  the  latter  and  admits  their  consuls. 

"  Art.  C  (p.  26).  The  Supreme  Court,  as  well  as  the  federal  inferior  tri- 
bunals, shall  have  jurisdiction  in  all  cases  and  causes,  not  mentioned  in 
number  2  of  article  67,  of  the  present  Constitution,  involving  points  to  be 
decided  eitlier  by  the  same  Constitution,  the  federal  laws,  or  foreign 
treaties,  and  also  in  all  cases  and  causes  concerning  ambassadors,  pub- 
lic ministers  and  foreign  consuls,  admiralty  cases,  or  cases  falling  under 
maritime  jurisdiction,  or  cases  and  causes  in  which  the  nation  has  an 
interest  as  a  party  thereto,  or  cases  between  the  Provinces  with  each 
other,  or  between  a  Province  and  the  citizens  of  another,  or  between  a 
province  or  its  citizens  against  a  foreign  citizen  or  State.     .     .     ." 

"Art.  CIV  (p.  27).  The  Provinces  retain  all  the  powers  not  delegated 
by  the  present  Constitution  to  the  Federal  Government,  as  well  as  all  the 
powers  expressly  reserved  by  them,  through  special  agreements,  at  the 
time  of  their  admission  into  the  Union. 

"Art.  CV.  Each  Province  shall  have  its  own  local  institutions  and 
laws,  and  shall  be  governed  by  them.  They  elect  their  governors,  leg- 
islators, and  provincial  functionaries  of  all  classes,  without  intervention 
of  the  Federal  Government. 

"  Art.  CVI.  Each  Province  shall  enact  its  own  Constitution,  subject  to 
the  provisions  of  article  V. 

"  Art.  C  VII.  The  Provinces  shall  have  the  power  to  conclude,  with  the 
knowledge  of  the  federal  Congress,  such  partial  treaties  as  may  be  neces- 
sary for  the  purposes  of  administration  of  justice,  or  for  regulating  finan- 
cial interests,  or  undertaking  public  works;  and  to  promote,  by  means 
of  protective  laws  and  at  their  own  expense,  their  own  industries,  im- 
migration into  their  territories,  the  building  of  railroads  and  navigable 
canals,  the  settlement  and  colonization  of  the  provincial  lands,  the  in- 
troduction and  establishment  of  new  industries,  the  importation  of 
foreign  capital  and  the  exploration  of  their  rivers. 

"  Art.  CVIII.  The  Provinces  cannot  exercise  any  power  delegated  to 
the  nation.  They  cannot  without  authority  from  the  Federal  Congress, 
enter  into  any  partial  treaties  of  apolitical  chnracter,  or  pass  laws  re- 
lating to  the  domestic  or  foreign  commerce  or  navigation,  or  establish 
provincial  custom-houses,  coin  money,  or  create  banks  of  emission. 
Neither  can  they  enact  any  civil,  commercial,  criminal  or  mineral  codes, 
subsequent  to  the  promulgation  of  the  national  ones  enacted  by  Con- 
gress, or  pass  laws  especially  applicable  to  themselves  on  the  subject  of 
citizenship,  naturalization,  bankruptcies  and  counterfeiting  of  money 

228 


CH.  IV.]    TREATY-MAKING  POWER  OF  FEDERATIONS.       §  131 

that  the  treaty -making  power  is  an  attribute  of  sovereignty 
is  further  evidenced  by  the  fact  that  only  sovereign  powers 

or  State  bonds,  or  establish  tonnage  duties,  arm  war  vessels,  or  raise 
armies,  except  in  cases  of  foreign  invasion  or  of  such  imminent  danger 
as  to  admit  of  no  delay,  and  on  conditiou  that  they  give  full  and  prompt 
account  of  it  to  the  Federal  Government,  or  appoint  or  receive  foreign 
agents,  or  permit  new  religious  orders  to  be  admitted. 

"Art.  CIX.  No  Province  can  declare  or  wage  war  against  another. 
Their  complaints  against  each  other  must  be  submitted  for  decision  to 
the  Supreme  Court  of  Justice.  Actual  hostilities  on  the  part  of  one 
Province  against  another  shall  be  deemed  to  be  acts  of  civil  war,  sedi- 
tious and  riotous,  which  the  Federal  Government  has  the  duty  to  put 
down  and  repress  under  the  laws. 

"  Art.  ex.  The  Governors  of  the  Provinces  shall  be  the  natural  agents 
of  the  Federal  Government  for  the  enforcement  of  the  Constitution  and 
the  laws  of  the  nation."  Compilation  of  Foreign  Constitutions,  com- 
piled for  the  New  York  State  Constitutional  Convention,  1894,  pp.  1-34. 

2  THE  CONFEDERATE  STATES. 

Prior  to  the  attempted  secession  of  the  Southern  States,  questions  had 
been  raised  on  many  occasions  both  in  Congress  and  in  the  courts  as 
to  the  extent  of  the  treaty-making  power  vested  in  the  Federal  Govern- 
ment and  as  to  what  limitations  existed  thereon;  the  secessionists  were 
always,  naturally,  the  most  ardent  advocates,  for  the  extension  of 
States  rights,  and  for  the  contraction  of  all  power  in  the  Central  Gov- 
ernment; notwithstanding  this,  however,  when  the  seceding  States  at- 
tempted to  organize  a  Confederate  Government,  they  adopted  a  Consti- 
tution in  which  they  expressly  declared  that  they  were  sovereign  and 
independent  States  and  afterwards  substantially  followed  the  Constitu- 
tion of  tl)e  United  States.  The  entire  Constitution  will  be  found  as  an 
Appendix  in  the  2d  volume  of  Curtis'  Constitutional  History  of  the 
United  States,  pp.  569,  et  seq.  The  clauses  relating  to  treaty  are  as  fol- 
lows: Article  II,  section  2,  in  enumerating  the  President's  powers  says: 
"  He  shall  have  power,  by  and  with  the  advice  of  the  Senate  to  make 
treaties,  provided  two-thirds  of  the  Senate  present  concur."  Similar 
limitations  were  placed  upon  the  States  in  regard  to  the  exercise  of 
foreign  relations  as  appears  by  section  8,  article  1,  which  is  as  follows: 

"Article  1,  §  10.  1.  No  State  shall  enter  into  any  treaty,  alliance,  or 
Confederation;  grant  letters  of  marque  and  reprisal;  coin  money;  make 
anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts;  pass  any 
bill  of  attainder,  or  ex  post  facto  law,  or  law  impairing  the  obligation 
of  contracts;  or  grant  any  title  of  nobility. 

"  2.  No  State  shall,  without  the  consent  of  the  Congress,  lay  any  im- 
posts or  duties  on  imports  or  exports,  except  what  naay  be  absolutely 
necessary  for  executing  its  inspecticm  laws;  and  the  net  produce  of  all 
duties  and  imposts,  laid  by  any  State  on  imports  or  exports,  shall  be 
for  the  use  of  the  treasury  of  the  Confederate  States,  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  Congress. 

229 


§  131  TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  IV. 

can  cede  territory  and  transfer  sovereignty  thereover.  At- 
tempts on  the  part  of  the  inhabitants  of  any  territory  belong- 
ing to  a  sovereign  State,  whether  by  the  act  of  unorganized 
masses  or  of  any  organized  local  government,  to  separate 
themselves  from  the  former  sovereign,  and  to  unite  with  any 
other  territory  are  always  considered  as  acts  of  rebellion 
on  the  part  of  the  inhabitants  of  the  territory  itself,  and  as  a 
casics  belli  on  the  part  of  the  Government  acce})ting  their  ad- 
hesion, or  by  reason  of  such  adhesion,  asserting  any  sover- 
eignty over  the  territory  involved.  The  desire  of  the  inhabi- 
tants of  the  seceding  territor}'  to  separate  themselves  from 
the  mother  country  is,  under  international  law,  no  palliation 
of  the  act  of  any  government  which  either  actively  assists 
such  separation,  or  tacitly  consents  to  receive  and  extend  its 
sovereignty  over  the  territory.  The  United  States  fully 
recognized  this  principle  of  international  law  when  it  ab- 

"  3.  No  State  shall,  without  the  consent  of  Congress,  lay  any  duty  of 
tonnage,  except  on  sea-going  vessels,  for  the  improvement  of  its  rivers 
and  harbors  navigated  by  the  said  vessels;  but  such  duties  shall  not 
conflict  with  any  treaties  of  the  Confederate  States  with  foreign  nations; 
and  any  surplus  revenue  thus  derived,  shall,  after  making  such  im- 
provement, be  paid  into  the  common  treasury.  Nor  shall  any  State 
keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any  agreement 
or  compact  with  another  State,  or  with  a  foreign  power,  or  engage  in 
war,  unless  actually  invaded,  or  in  such  imminent  danger  as  will  not 
admit  of  delay.  But  when  any  river  divides  or  flows  through  two  or 
more  States,  they  may  enter  into  compacts  with  each  other  to  improve 
the  navigation  thereof." 

The  judicial  power  was,  by  section  2,  Article  III,  extended  to  all  cases 
arising  under  the  Constitution,  the  laws  of  the  Confederate  States  and 
treaties  made,  or  which  should  be  made,  under  its  authority. 

Clause  3  of  Article  VI  was  as  follows: 

"This  Constitution,  and  the  laws  of  the  Confederate  States  made  in 
pursuance  thereof,  and  all  treaties  made  or  which  shall  be  made  under 
the  authority  of  the  Confederate  States,  shall  be  the  supreme  law  of 
the  land;  and  the  Judges  in  every  State  shall  be  bound  thereby,  any- 
thing in  the  Constitution  or  laws  of  any  State  to  the  contrary  notwith- 
standing." (This  is  an  exact  paraphrase  of  the  corresponding  clause 
of  Article  VI  of  the  Constitution  of  the  United  States.) 

It  appears  from  this  that  although  the  ardent  advocates  of  State's  rights 
and  of  the  strict  construction  of  the  Constitution  have  declaied  that  the 
treaty-making  power  as  it  is  vested  in  the  Executive  of  the  United  States 
subject  only  to  ratification  by  two-thirds  of  the  Senate  ought  to  be  lim- 
ited, and  that  the  rights  of  "Sovereign  States"  should  not  be  subordi- 
nated to  the  treaty  stipulations  of  the  Federal  Government,  that  when 

230 


CH.  IV.]    TKEATY-MAKING  POWER  OF  FEDERATIONS.       §  131 


stained  from  receiving  Texas  in  any  capacity  until  that  State 
had  established  its  independence  of  Mexico  be^^ond  all  ques- 
tion ;  ^  that  independence  had  been  fully  established  as  a  fact 

the  most  extreme  exponents  of  that  school  endeavored  to  form  a  con- 
stitution for  themselves,  they  not  only  placed  no  limitations  upon  the 
power,  to  be  exercised  by  the  President  and  Senate,  but  they  also  made 
treaties  the  supreme  law  of  the  land,  and  binding  upon  the  Judges  in 
every  State,  exactly  as  provided  in  the  Constitution  of  the  United  States; 
in  the  limitations  upon  the  States  while  permitting  them  to  lay  certain 
tonnage  duties,  they  especially  provided  that  they  must  not  in  any  way 
conflict  with  the  treaties  made  by  the  Central  Government.  If  the 
maxim  "Imitation  is  the  sincerest  flattery"  is  true,  there  can  be  no 
doubt  that  the  framers  of  the  Constitution  of  the  so-called  Confederate 
States  of  America  paid  the  highest  possible  compliment,  not  only  to 
the  framers  of  the  Constitution  of  the  United  States  but  also  to  those 
judges  of  the  Supreme  Court  who  had,  on  repeated  occasions,  sustained 
the  treaty-making  power  of  the  United  States  as  being  the  supreme 
law  of  the  land  and  paramount  to  the  laws  of  any  State  of  the  Union 
conflicting  therewith. 


§131. 

iSee  special  message  of  Presi- 
dent Andrew  Jackson,  to  Congress, 
December  21,  1836,  in  regard  to  the 
then  contemplated  recognition  of 
Texas  as  an  independent  State, 
which  he  concludes  as  follows: 

"  The  title  of  Texas  to  the  tei'ri- 
tory  she  claims  is  identified  with 
her  independence.  She  asks  us  to 
acknowledge  that  title  to  the  ter- 
ritory, with  an  avowed  design  to 
treat  immediately  of  its  transfer  to 
the  United  States.  It  becomes  us 
to  beware  of  a  too  early  movement, 
as  it  might  subject  us,  however  un- 
justly, to  the  imputation  of  seek- 
ing to  establish  the  claim  of  our 
neighbors  to  a  territory  with  a 
view  to  its  subsequent  acquisition 
by  ourselves.  Prudence,  therefore, 
seems  to  dictate  that  we  should 
still  stand  aloof  and  maintain  our 
present  attitude,  if  not  until  Mex- 
ico itself  or  one  of  the  great  foreign 
powers  shall  recognize  the  inde- 
pendence of  the  new  Government, 
at  least  until  the  lapse  of  time  or 
the  course   of  events   shall    have 


proved  beyond  cavil  or  dispute  the 
ability  of  the  people  of  that  country 
to  maintain  their  separate  sov- 
ereignty and  to  uphold  the  Govern- 
ment constituted  by  them.  Neither 
of  the  contending  parties  can  justly 
complain  of  this  course.  By  pur- 
suing it  we  are  but  carrying  out 
the  long  established  policy  of  our 
Government — a  policy  which  has 
secured  to  us  respect  and  influence 
abroad  and  inspired  confidence  at 
home.  Having  thus  discharged  my 
duty,  by  presenting  with  simplicity 
and  directness  the  views  which 
after  much  rellection  I  have  been 
led  to  take  of  this  important  sub- 
ject, I  have  only  to  add  the  expres- 
sion of  my  confidence  that  if  Con- 
gress shall  differ  with  me  upon  it, 
then  judgment  will  be  the  result  of 
dispassionate,  prudent,  and  wise 
deliberation,  with  the  assurance 
that  during  the  short  time  I  .shall 
continue  connected  with  the  Gov- 
ernment I  shall  jjromptly  and  cor- 
dially unite  with  you  in  such  meas- 
ures as  may  be  deemed  best  fitted 
to    increase    the    prosperity    and 

231 


§  133  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IV. 

for  at  least  eight  or  nine  years  before  the  resolutions  were 
adopted  for  the  annexation  and  admission  of  Texas  as  a 
State.  When  Texas  becaine  one  of  the  States  of  the  Union, 
therefore,  it  was  not  the  act  of  a  revolting  province  accom- 
plished with  the  aid  and  assistance  of  a  government  which 
should  have  remained  neutral,  for  the  United  States  had  so 
remained  during  the  Texan  war  for  independence.  The  war 
between  Texas  and  Mexico  had  resulted  in  Texas  establish- 
ing its  own  government  based  upon  the  sovereign  will  of  its 
people,  and  the  government  so  established  was,  in  1845,  ex- 
ercising full  and  uncontrolled  sovereignty  over  the  Terri- 
tory embraced  in  the  boundaries  of  the  Republic  of  Texas. 
The  annexation  of  Texas  was  the  result  of  proper  action, 
properly  taken,  by  two  sovereign  powers,  each  of  which 
was  fully  able  to  contract  with  the  other,  as  neither  owed 
any  allegiance  to,  or  were  under  the  control  of,  any  other 
government  or  power  which  could  place  any  limitations  upon 
its  action. 

§  132.  General  application  of  principles. — These  same 
principles  apply  to  all  States  exercising  control  over  other 
powers  by  virtue  of  a  confederation  in  which  a  central  gov- 
ernment has  been  created,  or  where  the  central  and  sover- 
eign power  has  acquired  control,  or  ownership  of  colonial 
possessions,  or  has  assumed  the  protectorate  over  territory 
which  has  parted  with  any  portion  of  its  sovereignty,  al- 
though in  the  last  instance  the  exercise  of  the  treaty-making 
power  by  either  the  protecting  or  protected  state  in  regard 
to  the  relations  of  the  latter  with  other  foreign  powers  must 
necessarily  be  determined  to  a  large  extent,  if  not  entirely, 
by  the  terms  of  the  protectorate. 

§  133.  Power  only  to  be  exercised  by  governments  pos- 
sessing complete  sovereignty. — The  proposition,  therefore, 
which  is  stated  at  the  outset  of  this  chapter,  that  the  treaty- 
making  power  is  an  attribute  of  sovereignty,  and  can  only 
be  exercised  by  a  government  possessing  every  element  of 
nationality  and  sovereignty,  is  demonstrated  by  historical 
and  legal  precedents  and  by  the  opinions  of  the  most  emi- 
nent writers  upon  this  subject.     It  can  also  be  stated  that 

perpetuate    the   peace   of  our  fa- 1  son."     Richardson's    Messages   of 
vored    country.      Andkew  Jack-  |  the  Presidents,  vol.  Ill,  pp.  2G8-269. 
232 


CH.  IV.]    TREATY-MAKING  POWER  OP  FEDERATIONS.       §  133 

the  treaty-making  power  is  a  necessary  accompaniment  to 
the  exercise  of  complete  sovereignty  and  nationality ;  fur- 
thermore it  cannot,  without  the  greatest  injury  to  both  the 
central  and  constituent  governments,  ever  be  exercised  by 
any  power  which  does  not  possess  every  element  of  sover- 
eignty.^ Treaty  stipulations  can  only  be  maintained  and  en- 
forced by  a  governing  power  which  possesses  every  such 
element  of  sovereignty.^     This  applies  not  only  to  the  en- 


§133. 

1  The  effect  of  negotiating  treaties 
■with  Indian  tribes  was  so  disas- 
trous that  the  United  States  finally 
stopped  it  by  act  of  Congress.  This 
will  be  referred  to  at  greater  length 
in  chapter  XIV  which  is  devoted 
exclusively  to  Indian  treaties  (see 
§  403  et  seq.  Vol.  II).  Tiie  compila- 
tion of  Indian  treaties  (U.  S.  Gov- 
ernment Printing  Office,  1873), 
shows  that  all  sorts  of  contracts, 
deeds  and  agreements,  not  only 
with  dependent  Indian  nations,  but 
also  with  subordinate  tribes,  and 
even  with  chiefs  of  Indians  bands, 
were  dignified  with  the  title  of 
treaties,  and  that  an  endless 
amount  of  confusion  and  litigation 
arose  from  this  improper  use  of 
the  treaty-making  power.  It  must 
be  noted,  however,  that  the  United 
States  never  permitted  uny  foreign 
nation  to  make  treaties  with  In- 
dians; the  general  principle,  as 
stated  in  this  section,  therefore, 
was  not  violated  by  the  fact  that 
contractual  relations  were  entered 
into  by  tlie  United  States  with  de- 
pendent Indian  nations,  tribes  and 
bands,  and  that  the  contracts  evi- 
dencing the  same  were  called 
treaties. 

2  Several  eminent  publicists  have 
expressed  themselves  on  this  sub- 
ject; some  of  these  opinions  are 
referred  to  at  an  earlier  point  in 
this  chapter  (pp.  197,  et  seq.)\  two 


additional  quotations  will  be  given 
to  close  the  chapter. 

Lawrence:  "Every independent 
member  of  the  family  of  nations 
possesses  to  the  full  the  right 
of  sending  diplomatic  ministers 
to  other  states;  but  it  behmgs 
to  part -sovereign  communities  only 
in  a  limited  form,  the  exact  re- 
strictions upon  the  diplomatic  ac- 
tivity of  each  being  determined  by 
the  instrument  which  defines  its 
international  position.  Egypt,  for 
instance,  under  the  Sultan's  Fir- 
mans of  1866  and  1867  may  negoti- 
ate commercial  and  postal  conven- 
tions with  foreign  powers,  provided 
they  do  not  contain  political 
arrangements;  and  to  this  condi- 
tion the  Firman  of  1879  added  the 
further  obligation  of  communicat- 
ing them  to  the  Porte  before  they 
are  published.  In  the  case  of  the 
looser  sort  of  Confederations  the 
treaty-making  and  negotiating 
power  of  the  states  which  comprise 
them  is  limited  by  the  federal  act. 
Thus  each  member  of  the  German 
Confederation  which  existed  from 
1815  to  1866  was  bound  not  to  do 
anything  in  its  alliances  with  for- 
eign powers  against  the  security 
of  the  Confederation  or  any  mem- 
j  ber  of  it,  and  when  war  was  de- 
clared by  the  Confederation  no 
member  of  it  could  negotiate 
separately  with  the  enemy.  Per- 
manently   neutralized    states    can 

233 


§133 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CII.  IV. 


forcement  of  treaty  stipulations  as  to  the  other  contracting 
power,  but  also  to  the  maintenance,  in  good  faith,  of  those 
stipulations  by  every  individual  and  government,  local  or 
constituent,  under  the  control,  or  protection,  of  the  sov- 
ereign power  which  has  entered  into,  and  is  bound  by,  the 
treaties.  In  the  succeeding  chapters  of  this  volume  the 
author  hopes  to  demonstrate  that  the  treaty-making  power 
of  the  Central  Government  of  the  United  States  is  not  only 
one  of  the  greatest  powers  which  has  been  confided  to  it, 
but  that  it  is  also  one  which  it  possesses  in  its  fullest  strength, 
and  which  it  is  able  to  exert  over  every  person  and  State  in 
the  Union ;  that  this  power  is  in  conformity  with  interna- 
tional law,  as  well  as  with  the  constitutional  and  municipal 
law  of  the  United  States,  and  of  every  State  composing  the 
Union,  and  that  its  existence  in,  and  its  exercise  by,  the  Cen- 
tral Government  inures  alike  to  the  benefit  of  every  State 
individually,  and  to  the  Union  as  a  whole. 


make  no  diplomatic  agreements 
which  raay  lead  tliem  into  hostili- 
ties for  any  otlier  purpose  than  the 
defence  of  their  own  frontiers.  Bel- 
gium, for  instance,  though  she 
took  part  in  the  Conference  of 
London  of  1867,  whicli  decreed  and 
guaranteed  tlie  neutralization  of 
Luxemburoj  did  not  sign  the  Treaty 
of  Guarantee  because  it  bound  the 
signatory  powers  to  defend  the 
Duchy  fi'om  wanton  attack." 
Lawrence's  Principles  of  Interna- 
tional Law,  pp.  263-264. 

Phillimoke. 
"XLVIIL  The  first  point  to  be 
considered  is,  who  are  competent 
to  contract  a  Treaty  ?  This  compe- 

234 


fence  is  possessed  by  all  independ- 
ent kingdoms. 

"A  protected  State  may,  if  it 
has  retained  its  sovereignty,  make 
Treaties  and  Alliances,  unless 
the  power  has  been  expressly  re- 
nounced, or  cannot  be  exercised 
consistently  with  the  conditions  of 
its  protection.  We  have  seen  that 
States  under  a  Federal  Union  may 
or  may  not,  according  to  the  terms 
of  their  confederation,  be  compe- 
tent to  enter  into  Treaties  with 
foreign  nations.     .     .     . 

"  No  subordinate  corporations  in 

a  State  can  be  contracting  parties 

to  a  Treaty  with  a  Foreign  State." 

Phillimore  Int.   Law,    3d  edition, 

'l  vol,  II,  pp.  73-75. 


CHAPTER  V. 

TREATIES,  AND  THE  TEEATY-MAKING  POWER  OF  THE  UNITED 
STATES  AS  EXERCISED  PRIOR  TO  AND  UNDER  THE  CONFEDERA- 
TION. 


SECTioir 

134 — Treaty  making  and  sover- 
eignty as  to  colonies  by 
central  governments. 

135 — Colonies  as  the  subject  of 
treaties  between  European 
powers. 

136 — Nature  of  allegiance  of 
American  colonies  to 
mother  country. 

137— Birth  of  United  States;  Dec- 
laration of  Independence. 

138 — ChLsholin  YS.  Georgia;  views 
of  Chief  Justice  Jay. 

139 — Extent  of  sovereignty  in 
the  Continental  Congress. 

140— States'  Eights  School  conten- 
tion. 

141 — Broader  views  of  Marshall 
and  others. 

142— Views  of  Calhoun  and  Tuck- 
er. 

143 — Views  of  Calhoun  and 
Tucker  refuted  by  Justice 
Story  and  others. 

144 — Views  of  Justice  Miller  and 
Mr.  Davis. 

145 — The  Continental  Congress  a 
revolutionary  government. 

146— Nature  of  Congress  prior  to 
Constitutiim. 

147— Independence,  preservation 
of  States'  Rights,  National 
unity  —  all  united  in  origi- 
nal and  .subsequent  govern- 
ments, of  United  States. 

148— Adoption  of  Articles  of  Con- 
federation. 


Section 

149 — National  unity  and  State 
independence. 

150 — Treaty-making  power  as- 
sumed by  Congress  as  an 
attribute  of  sovereignty. 

151 — Treaties  with  Fiance  made 
with  States  by  name. 

152 — Principles  established  by 
treaties  with  France. 

153 — Advantages  derived  by  all 
States  under  treaties  with 
France. 

154 — Treaties  with  Fiance  con- 
cluded prior  to  final  ratifi- 
cation of  Articles  of  Con- 
federation. 

155 — Great  extent  of  treaty-mak- 
ing power  of  Congress 
fully  appreciated  by 
States. 

156— Other  treaties  made  by  Con- 
gress. 

157 — Names  of  States  recited  in 
preambles  of  treaties. 

158 — Treaty  of  peace  with  Great 
Britain. 

159 — Special  provisions  of  Arti- 
cle V. 

100 — Other  treaties  made  by  Con- 
gress under  Confederation 
again  referred  to. 

161 — Other  sovereign  and  national 
powers  exercised  by  earl- 
ier Congresses. 

162 — Views  of  Justice  Story. 


235 


§  135  TREATY-MA KIXG  POWER  OF  TPIE  IT,  S.  [CH,   V. 

§  134.  Treaty  makiiii^  and  sovereignty  as  to  colonies  by 
central  governments. — It  has  been  shown  in  the  preceding 
chapters  that  the  treat3''-making  power  is  necessarily  an  at- 
tribute of  complete  sovereignty  ;  it  has  also  been  shown  that 
the  United  States  government  possesses  such  complete  sov- 
ereignty and,  therefore,  possesses  every  attribute  thereof; 
it  is  necessary,  however,  to  refer  to  the  period  between  the 
time  when  the  original  States  of  the  Union  were  colonies, 
possessed  of  no  self-government  which  was  capable  of  ex- 
ercising the  treaty-making  power,  and  the  formation  and 
adoption  of  the  Federal  Constitution,  when,  as  States  they 
finally  prohibited  all  exercise  of  that  power  except  through 
the  medium  of  the  Central  Government.  The  thirteen  years 
which  elapsed  from  1774  to  1787  w^as.  so  to  speak,  a  period 
of  transition,  during  part  of  which  a  purely  revolutionary 
government  existed,  and  during  the  balance  of  which  the 
Articles  of  Confederation  formed  the  basis  of  the  Federal 
Government,  except  so  far  as  certain  broad  functions  of  sov- 
ereignty were  exercised  by  Congress,  the  basis  of  which  was 
not  any  written  articles,  but  the  necessities  of  the  occasion, 
and  the  fact  that  the  colonies  had  become  a  unit  as  to  na- 
tional matters  coevally  with  the  first  expression  of  their  in- 
tention to  become  independent. 

§  135.  Colonies  as  the  subject  of  treaties  between  Eu- 
ropean powers. — Prior  to  the  revolution,  and  the  forming 
and  adoption  of  the  Articles  of  Confederation,  or  even  the 
first  meeting  of  the  Colonial  Congress,  the  Ameiican  colo- 
nies had  been,  on  more  than  one  occasion,  the  subject-matter 
of  treaties  made  by  and  between  European  nations  without 
any  intervention  on  their  part,  or  even  their  expression  of 
approval  or  protest  being  asked  or  permitted.  Vital  inter- 
ests both  as  to  intercolonial  and  ti-ans-Atlantic  affairs  had 
been  seriouslv  affected  without  allowing  the  inhabitants  of 
the  great  colonies  in  America  any  voice  whatever.^  Under 
such  a  training,  the  representatives  of  the  colonies  who  met 
in  Philadelphia,  as  well  as  all  thinking  men  in  the  separate 
colonies  who  took  any  part  whatever  in  the  local  govern- 
ment, fully  understood,  and  fully  appreciated,  the  extent  and 

§135. 

iSee  collation  of  treaties  in  note  under  §  119,  p.  204,  ante. 

236 


CH.  v.]  TREATIES  OF  THE  CONFEDERATION.  §  136 

far-reaching  effects  of  the  treaty-making  power,  and  of  the 
treaties  concluded  between  sovereign  powers,  not  only  di- 
rectly upon  the  contracting  governments,  but  also  upon  all 
the  people,  whatever  their  local  government  might  be,  over 
whom  the  sovereignty  and  jurisdiction  of  the  contracting 
powers  extended.  They  were  also  fully  aware  of  the  fact 
that,  as  colonies,  they  were  powerless  to  enter  into  any  treat- 
ies or  negotiations  with  each  other,  or  with  foreign  powers, 
in  regard  to  any  matter  whatever,  even  though  their  own 
interests  might  be  vitally  and  individually  affected  thereby. 
They  were  obliged,  therefore,  to  understand  that  if,  as  con- 
stituent states  of  a  confederation,  they  either  delegated  to 
a  central  government,  or  conceded  that  a  central  govern- 
ment possessed,  the  treaty-making  power,  such  power  could 
be  exercised  by  that  central  or  federal  government  in  the 
same  far-reaching  manner  as  it  had  always  been  exercised 
by  the  previously  dominant  power  of  Great  Britain,  until 
its  jurisdiction  was  completely  thrown  off  by  the  colonies, 
when  they  made  their  first  move  to  resist  the  royal  orders, 
which  was  equivalent  to  an  unwritten  declaration  of  inde- 
pendence. 

§136.  Nature  of  allegiance  of  American  colonies  to 
mother  country — By  the  expression  "prior  to  the  confed- 
eration" in  the  caption  of  this  chapter,  the  only  period  that 
can  be  comprehended  is  the  brief  space  of  time  that  elapsed 
between  the  throwing  off  of  the  allegiance  of  the  colonies 
and  the  adoption  of  the  Articles  of  Confederation. 

There  is,  of  course,  no  doubt  whatever  as  to  the  fact  that, 
prior  to  the  Revolution,  the  people  of  the  colonies  owed  alle- 
giance to  the  Crown  of  Great  Britain.  Exactly  what  that 
allegiance  was,  i.  e.,  whether  it  was  in  any  way  connected  with 
the  colonies  as  separate  entities,  or  with  them  as  a  whole,  is 
still  a  matter  of  discussion,  as  is  also  the  exact  time  when  the 
colonies  and  colonists  became  free  from  all  allegiance  to  the 
mother  country.  These  points  Avill  always  be  difficult  to 
determine,  as  the  people  of  the  colonies  were,  for  a  long 
period,  prior  to  July  4,  1Y76,  engaged  in  actual  rebeUion, 
which  finally  resulted  in  the  recognition  of  their  independ- 
ence. The  Continental  Congress  in  fact  had  been,  and  was, 
exercising  the  functions  of  a  revolutionary  government,  for 

237 


§137 


TREATY-MAKING  POWER  OF  THE  IT.  S. 


[CH.  V. 


and  on  behalf  of  all  the  colonies,  for  many  months  prior  to 
the  promulgation  of  the  Declaration  of  Independence.' 

§  137.  Birth  of  United  States ;  Declaration  of  Independ- 
ence.— It  is  generally  considered  that  the  birth  of  the  United 
States  was  on  the  4th  day  of  July,  1776,  and  that  it  was  evi- 
denced by  the  promulgation  of  the  Declaration  of  Independ- 
ence. If,  however,  as  the  Supreme  Court  has  declared,  the 
United  States  was  born  as  a  nation  with  the  Declaration,^  it 
was  certainly  conceived,  as  such,  not  later  than  the  assem- 
bling of  the  first  Congress,  or,  at  the  very  latest,  at  the  battle 
of  Lexington.^  The  colonies  had,  prior  thereto,  practically 
acted  as  independent  States.  They  had  always  done  so,  how- 
ever, as  an  entity  and  not  in  their  separate  capacities.  When 
they  issued  that  memorable  document,  they  did  so  as  a  whole 
and  not  separately.  They  did,  indeed,  declare  that  they  al- 
ready existed  as  free  and  independent  States,  and  not  that 
they  intended  to  become  so  at  a  future  time ;  but  they  did 
this  as  the  United  States  through  the  medium  of  delegates  to 
a  Congress  which  exercised  functions  of  national  sovereignty 


§136. 

"iThe  continental  government, 
which  commissioned  and  sent 
Washington  to  take  the  command 
of  the  army  which  it  had  adopted, 
consisted  solely  of  a  body  of  dele- 
gates, chosen  to  represent  the  peo- 
ple of  the  several  colonies  or  states, 
for  certain  piirposes  of  national  de- 
fence, safety,  redress,  and  finally, 
revolution."  Constitutional  His- 
tory of  the  United  States  by  George 
Ticknor  Curtis,  vol.  I,  chapter  .3, 
entitled,  "  The  Revolutionary  Gov- 
ernment." p.  ?>8;  and  see  also 
Penhallnw  vs.  Boane,  U.  S.  Sup. 
Ct.  1795,  3  Dallas  54,  Pater- 
son,  J. ;  IT'rtre  vs.  Hylton,  U.  S.  Sup. 
Ct.  1796,3  Dallas  199,  Chase,  J. ;  ex- 
tracts from  these  opinions  as  quoted 
in  Story's  Commentaries  will  be 
found  in  note  1,  under  §  143,  p.  246, 
post  of  this  volume;  also  CJmholm 
vs.  Georgia,  U.  S.  Sup.  Ct.  1793,  2 
Dallas  419,  nnd  see  §  1.38,  p.  242,  post. 
238 


§137. 

1  Harcourt  vs.  Gaillard,  U.  S.  Sup. 
Ct.  1827,  12  Wheaton,  523,  John- 
son, J.,  in  which  it  was  held,  as 
stated  in  the  syllabus,  that  "A 
grant  made  by  the  British  gov- 
ernor of  Florida,  after  the  declara- 
tion of  independence  within  the 
territory  lying  between  the  Miss- 
issippi and  the  Chatahouchee  riv- 
ers, and  between  the  31st  degree  of 
north  latitude,  and  a  line  drawn 
from  the  mouth  of  the  Yazoo  river 
due  east  to  the  Chatahouchee,  is 
invalid  as  the  foundation  of  title  in 
the  Courts  of  the  United  States." 
Chishohn  vs.  Georgia,  U.  S.  Sup. 
Ct.  1793,  2  Dallas  419,  and  see  fur- 
ther reference  to  this  case  in  §  138, 
p.  242,  post,  and  extract  from  opin- 
ion of  Jay,  Ch.  J.,  in  note  under 
§  143,  p.  246,  post. 

■^The  Battle  of  Lexington  was 
fought  April  19,  1775.  See  note  on 
national  unity  prior  to  Declaration 


en.  v.]     TREATIES  OF  THE  CONFEDERATION. 


§137 


for  the  joint  benefit  of  all  the  people  of  the  good  colonies  of 
North  America.^  This  demonstrated  the  co-ordinate  births 
of  the  principles  of  unity  and  independence  in  our  national 

of  Independence  under  §  147,  p.  254, 


post. 

3  Tlie  Declaration  of  Independ- 
ence did  not  have  tlie  usual  pre- 
amble and  recital  as  to  the  names 
of  the  States  or  colonies;  in  fact 
the  names  of  the  colonies  do  not 
appear  in  the  document;  through- 
out the  document  the  word  "  we  " 
is  used  without  any  declarative 
words  whatsoever,  leaving  it  sim- 
ply to  the  persons  signing  it  to 
specify  in  what  capacity  it  was  ex- 
ecuted. Tlie  concluding  sentence 
is  as  follows: 

"  We,  therefore,  the  Representa- 
tives of  the  United  States  of  Amer- 
ica In  General  Congress,  assem- 
bled, appealing  to  the  Supreme 
Judge  of  the  World  for  the  recti- 
tude of  our  intentions,  do,  in  the 
Name,  and  by  Authority  of  the 
good  People  of  these  Colonies  sol- 
emnly Publish  and  Declare,  That 
these  United  Colonies  are,  and  of 
Right  ought  to  be  Free  and  Inde- 
pendent States;  that  they  are  Ab- 
solved from  all  Allegiance  to  the 
British  Crown,  and  that  all  politi- 
cal connection  between  them  and 
the  State  of  Great  Britain,  is  and 
ought  to  be  totally  dissolved;  and 
that  as  Free  and  Independent 
States,  they  have  full  Power  to 
levy  War,  conclude  Peace,  con- 
tract Alliances,  establish  Com- 
merce, and  to  do  all  other  Acts  and 
Things  which  Independent  States 
may  of  right  do.  And  for  the  sup- 
port of  this  Declaration,  with  a 
firm  reliance  on  the  Protection  of 
Divine  Providence,  We  mutually 
pledge  to  each  other  our  Lives, 
our  Fortunes  and  our  sacred 
Honor." 


BURGESS. 

"  Complete  geographical  separa- 
tion and  a  partial  ethnical  separa- 
tion from  the  motherland,  together 
with  complete  geographical  unity, 
substantial  ethnical  unity,  and  al- 
most complete  identity  of  interests 
among  themselves  were  the  forces 
which  conspired,  at  last,  to  awaken 
the  consciousness  of  the  people  of 
these  thirteen  colonies  to  the  fact 
that  they  had  attained  the  natural 
conditions  of  a  sovereignty, — a 
State.  The  impulse  to  objectify 
this  consciousness  in  institutions 
became  irresistible.  Its  first  en- 
during form  was  the  Continental 
Congress.  This  was  the  first  or- 
ganization of  the  American  state. 
From  the  first  moment  of  its  exist- 
ence there  was  something  more 
upon  this  side  of  the  Atlantic  than 
thirteen  local  governments.  There 
was  a  sovereignty,  a  state;  not  in 
idea  simply  or  upon  paper,  but  in 
fact  and  in  organization.  The  rev- 
olution was  an  accomplished  fact 
before  the  declarntion  of  1776,  and 
so  was  independence.  The  act  of 
the  4th  of  July  was  a  notification 
to  the  world  ot  fails  accomplis.  A 
nation  and  a  state  did  not  spring 
into  existence  through  that  decla- 
ration, as  dramatic  publicists  are 
wont  to  express  it.  Nations  and 
states  do  not  spring  into  existence. 
The  significance  of  the  proc-lama- 
tion  was  this:  a  peoj)le  testified 
thereby  the  consciousness  of  the 
fact  that  they  had  become,  in  the 
progressive  development  of  history, 
one  whole,  scj)arate,  and  adult  na- 
tion, and  a  national  state,  and  that 
they  were  determined  to  defend 
this  natural  status  against  the  now 

239 


s 


137 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  V. 


political  history.     It  has  been  so  decided  by  the  Supreme 
Court.^     Stor}',  in  his  Commentaries,  says  "  that  the  colonies 


no  longer  natural  supremacy  of  a 
foreign  state.  Freuch  statesmen 
had  foreseen  and  predicted  this  de- 
velopment and  result  a  decade  be- 
fore the  stamp  act.  The  American 
state,  organized  in  the  Continental 
Congress,  proclaimed  to  the  world 
its  sovereign  existence,  and  pro- 
ceeded, through  this  same  organi- 
zation, to  govern  itself  generally, 
for  the  time  being  and  to  authorize 
the  people  resident  within  the  sep- 
arate cohmies  to  make  temporary 
arrangement  for  their  local  govern- 
ment, upon  the  basis  of  the  widest 
possible  suffrage."  Burgess'  Po- 
litical Science  and  Constitutional 
Law,  vol.  I,  p.  100. 


"This  celebrated  instrument,  re- 
gai'ded  as  a  legislative  proceeding, 
was  the  solemn  enactment,  by  the 
representatives  of  all  the  colonies, 
of  a  complete  dissolution  of  their 
allegiance  to  the  British  crown. 
It  severed  the  political  connection 
between  the  people  of  this  country 
and  the  people  of  England,  and  at 
once  erected  the  different  colonies 
into  free  and  independent  states. 
The  body  by  which  this  step  was 
taken  constituted  the  actual  gov- 
ernment of  the  nation,  at  the  time, 
and  its  members  had  been  directly 
invested  with  competent  legislative 
power  to  take  it,  and  had  also  been 
specially  instructed  to  do  so.  The 
consequences  flowing  from  its  adop- 
tion were,  that  the  local  allegiance 
of  the  inhabitants  of  each  colony 
became  transferred  and  due  to  the 
colony  itself,  or  as  it  was  expressed 
by  the  Congress,  became  due  to 
the  laws  of  the  colony,  from  which 
they  derived  protection;    that  the 

240 


people  of  the  country  became 
thenceforth  the  riglitful  sovereign 
of  the  country;  that  they  became 
united  in  a  national  capacity,  as 
one  people;  that  they  could  there- 
after enter  into  treaties  and  con- 
tract alliances  with  foreign  nations, 
could  levy  war  and  conclude  peace, 
and  do  all  other  acts  pertaining  to 
the  exercise  of  a  national  sov- 
ereignty; and  finally,  that,  in  their 
national  capacity,  they  became 
known  and  designated  as  the  Uni- 
ted States  of  America.  This  Dec- 
laration was  the  first  national 
state  paper  in  which  these  words 
were  used  as  the  style  and  title  of 
the  nation.  In  the  enacting  part 
of  the  instrument,  the  Congress 
styled  themselves  'the  representa- 
tives of  the  United  States  of  Amer- 
ica in  general  Congress  assembled ; ' 
and  from  that  period  the  previously 
'  United  Colonies  '  have  been  known 
as  a  political  community,  both 
within  their  own  borders  and  by 
the  other  nations  of  tlie  woild,  by 
the  title  which  they  then  assumed. 

"  The  title  of  '  The  United  States 
of  America'  was  formally  assumed 
in  the  Articles  of  Confederation, 
when  they  came  to  be  adopted. 
But  it  was  in  iise,  without  formal 
enactment,  from  tlie  date  of  the 
adoption  of  the  Declaration  of  In- 
dependence. On  the  0th  of  Sep- 
tember, 1776,  it  was  ordered  that 
in  all  continental  commissions  and 
other  instruments,  where  the  words 
'United  Colonies'  had  been  used, 
the  style  should  be  altered  to  the 
'United  States.'  Journals  of  Con- 
gress, vol  II,  p.  349."  Curtis's  Con- 
stitutional History  of  the  United 
States,  pp.  35-36,  vol.  1. 

*  For  note  4,  see  p.  241. 


CH.  v.]  TREATIES  OF  THE  CONFEDERATION.  §  137 

did  not  severall}'  act  for  themselves,  and  proclaim  their  own 
independence."  Continuing,  he  savs  :  "  It  is  true  that  some 
of  the  States  had  previously  formed  incipient  governments 
for  themselves ;  but  it  was  done  in  compliance  with  the  rec- 
ommendations of  Congress.  .  .  .  But  the  declaration  of 
independence  of  all  the  colonies  was  the  united  act  of  all. 
It  was  'a  declaration  by  the  representatives  of  the  United 
States  of  America  in  Congress  assembled ' ;  '  by  the  dele- 
gates appointed  by  the  good  people  of  the  colonies,'  as  in  a 
prior  declaration  of  rights  they  were  called.  It  was  not  an 
act  done  by  the  State  governments  then  organized,  nor  by 
persons  chosen  by  them.  It  was  emphatically  the  act  of  the 
whole  people  of  the  united  colonies,  by  the  instrumentality 
of  their  representatives,  chosen  for  that  among  other  pur- 
poses. It  was  not  an  act  competent  to  the  State  govern- 
ments, or  any  of  them,  as  organized  under  their  charters,  to 
adopt.  Those  charters  neither  contemplated  the  case  nor 
provided  for  it.  It  was  an  act  of  original,  inherent  sover- 
eignty by  the  people  themselves,  resulting  from  their  right 
to  change  the  form  of  government,  and  to  institute  a  new 
one,  whenever  necessary  for  their  safety  and  happiness.  So 
the  Declaration  of  Independence  treats  it.  No  State  had 
presumed  of  itself  to  form  a  new  government,  or  to  provide 
for  the  exigencies  of  the  times,  without  consulting  Congress 
on  the  subject ;  and  when  any  acted,  it  was  in  pursuance 
of  the  recommendation  of  Congress.  It  was,  therefore,  the 
achievement  of  the  whole  for  the  benefit  of  the  whole.  The 
people  of  the  united  colonies  made  the  united  colonies  free 
and  independent  States,  and  absolved  them  from  all  alle- 
giance to  the  British  Crown.  The  Declaration  of  Independ- 
ence has  accordingly  always  been  treated  as  an  act  of  para- 
mount and  sovereign  authority,  complete  and  -perfect, per  se, 
and  ipso  facto  working  an  entire  dissolution  of  all  political 
connection  with,  and  allegiance  to,  Great  Britain.  And  this, 
not  merely  as  a  practical  fact,  but  in  a  legal  and  constitutional 
view  of  the  matter  by  courts  of  justice."  ^ 


*See  §  143,  pp.  246,  et  seq.  post, 
anrl  extracts  from  Story,  Curtis, 
Miller,  Davis  and  Cooley,  and  cases 


6  Commentaries  on  the  Constitu- 
tion of  the  United  States  by  Joseph 
Story,    LL.   D.,    5th    ed.,   Boston, 


cited  on  this  point.  '  1891,  vol.  I,  sec.  211,  pp.  153-155. 

16  241 


§  139  TKEATY-MAKING  POWER  OF  THE  TJ.  S.  [CH.  V. 

§  138.  Chisholm  vs.  Georgia ;  views  of  Chief  Justice  Jay. 

— This  was  also  the  decision  in  the  case  of  Cliishohn  vs.  Geor- 
gia,^ in  which  it  was  held  that  the  "  Revolution,  or  rather,  the 
Declaration  of  Independence,  found  the  people  already  uni- 
ted for  general  purposes,  and  at  the  same  time  providing  for 
then'  more  domestic  concerns  bj  State  conventions,  and  other 
temporary  arrangements.  From  the  Crown  of  Great  Bri- 
tain^ the  sovereignty  of  their  countr}'  passed  to  the  people  of 
it ;  and  it  was  then  not  an  uncommon  opinion,  that  the  unap- 
propriated lands,  which  belonged  to  that  Crown,  passed  not 
to  the  people  of  the  Colony  or  State  within  whose  limits  they 
were  situated,  but  to  the  whole  people ;  on  whatever  prin- 
ciples this  opinion  rested,  it  did  not  give  way  to  the  other, 
and  thirteen  sovereignties  were  considered  as  emerged  from 
the  principles  of  the  Revolution,  combined  with  local  con- 
venience and  considerations;  the  people  nevertheless  con- 
tinued to  consider  themselves,  in  a  national  point  of  view,  as 
one  people ;  and  they  continued  without  interruption  to  man- 
age their  national  concerns  accordingly  ;  afterwards,  in  the 
hurry  of  the  war,  and  in  the  warmth  of  mutual  confidence, 
they  made  a  confederation  of  the  States,  the  basis  of  a  gen- 
eral government." 

§  139.  Extent  of  Sovereignty  in  the  Continental  Con- 
gress.— From  the  time  the  first  Continental  Congress  as- 
sembled at  Philadelphia,  September  5, 1771,  until  the  present 
time  there  has  been  an  active  and  unending  discussion  as  to 
the  extent  of  sovereignty  which  was  vested  in  that  Congress, 
either  in  its  capacity  as  a  revolutionary  government  prior  to, 
or  in  its  capacity  as  a  Congress  of  delegates  from  various 
States  subsequent  to,  the  adoption  of  the  Articles  of  Confed- 
eration. In  many  respects  this  has  become  a  purely  academic 
question  ;  it  is,  however,  of  vital  importance,  as  a  demonstra- 
tion of  the  truth  of  the  statement  already  made,  that  at  the 
very  moment  the  colonies  decided  to  throw  off  their  allegiance 
to  Great  Britain,  if  not  prior  thereto,  it  was  a  recognized  fact, 
and  one  which  was  acted  upon  from  the  moment  that  resolu- 


§138. 

^  Chisholm  vs.  Georgia,  U.  S.  Sup. 
Ct.  1793,  2  Dallas,  419,  p.  462,  Jay, 
Ch.  J.,  Ikedell,  Blaib,  Wilson 
242 


and  Gushing,  JJ.,  and  see  extract 
from  opinion  of  Jay,  Ch.  J.,  in 
note  to  §  143,  p.  246,  post. 


CR.  V.J  TREATIES  OF  THE  CONFEDERATION.  §  140 

tion  was  framed  until  the  Constitution  was  adopted,  that 
the  colonies  in  so  doing  acted,  not  in  their  separate  and  in- 
dividual capacities,  but  unitedly  as  one  people,  and  as  one 
nation,  and  that  no  steps  were  taken  to  achieve  independence 
until  it  had  been  ascertained  that  unity  of  action  had  already 
been  achieved.  In  fact,  a  long  and  interesting  investigation  of 
historical  facts  and  documents,  connected  with  these  elements 
of  the  origin  of  our  national  life  and  of  the  opinions  of  many 
of  our  ablest  historians  and  jurists,  who  have  closely  studied 
the  subject  in  all  of  its  varied  aspects,  has  necessarily  led 
to  but  one  conclusion :  that  the  duality  of  the  Govern- 
ment of  the  United  States,  as  hereinbefore  expressed,  to  wit : 
as  a  federation  only  in  regard  to  internal  affairs,  and  as  a 
nation  in  regard  to  all  matters  of  common  interest  or  ex- 
ternal relations,  with  every  element  of  complete  sovereignty 
and  nationality  vesting  in  the  Central  Government  as  to 
national  matters,  was  coeval,  and  ever  has  been,  co-existent, 
with  the  idea  of  independence  and  self-government  of  the 
colonies,  and  of  the  States ;  and  that  as  a  principle  of  politi- 
cal science,  or  political  history,  the  United  States  existed  as 
an  independent  nation  prior  to  the  transformation  of  many 
of  the  colonies  into  States. 

§  140.  States'  Rights  School  contention The  quota- 
tions already  given  from  Story's  Commentaries  and  from 
Chief  Justice  Jay's  opinion  in  Chisliolm  vs.  Georgia^  show 
that  the  views  expressed  in  the  preceding  section  have  been 
adopted  by  many  great  thinkers;  notwithstanding  these  ex- 
pressions, however,  as  well  as  many  others  of  a  similar  na- 
ture, there  has  been  a  constant  effort  on  the  part  of  the  strict 
States'  Eights  School  to  divest  the  Continental  Congress,  in 
any  and  all  of  its  capacities,  of  every  right  and  power  to  ex- 
ercise the  functions  of  a  national  government,  and  also  to 
divest  the  government  under  the  Confederation  of  every  at- 
tribute of  sovereignty,  even  including  those  powers  which 
were  absolutely  essential  for  the  prosecution  of  the  revolu- 
tionary war,  the  preser-vation  of  the  Union,  the  assertion  and 
maintenance  of  independence  and  the  estabhshment  and 
proper  conduct  of  the  relations  of  the  nation,  or  community, 
with  other  countries,  and  all  of  which  powers  were  so  neces- 
sary for  the  preservation  of  the  whole  and  of  each  individual 

243 


§  142  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  V. 

part,  that  Congress  actually  exercised  them  whether  it  did 
so  under  an  improper  assumption  of  power  or  from  the  act- 
ual possession  thereof;  certainly  the  doctrine  of  omnviprcB- 
suinuntur  rite  esse  acta  ought  to  appl}^  in  a  case  of  this 
nature. 

§  141.  Broader  views  of  Marshall  and  others. — The 
theory  of  the  nationality  and  sovereignty  of  the  Central 
Government,  as  it  appears  from  decisions  made  by  Chief  Jus- 
tices Jay  and  ^larshail,  and  as  enunciated  by  Story,  Curtis 
and  Miller,  is  that  a  Government  was  constituted  which  not 
only  possessetl  the  powers  which  were  delegated  to  it  by  the 
Articles  of  Confederation,  and  hy  the  instructions  of  the  dele- 
gates, but  which  also  possessed  inherently  or,  as  Mr.  Davis 
has  expressed  it  in  his  notes  to  Justice  Miller's  Lectures,  un- 
consciously, national  and  sovereign  powers.  Mr.  Davis  dis- 
cusses this  view  of  the  subject  and  shows  by  the  actual  work 
performed  by  the  Continental  Congress,  as  well  as  by  the 
Congress  under  the  Confederation,  that  elements  of  nation- 
ality and  sovereignty  must  have  existed,  because  the  acts 
done  could  only  have  been  accomplished  by  the  exercise  of 
sovereignty  by  a  fully  sovereign  power,  and  not  by  one  of 
limited  or  delegated  powers;  in  fact,  he  says:  "That  the 
Statesmen  in  the  Continental  Congress  felt  that  they  formed 
part  of  a  National  Government,  ruling,  in  its  proper  sphere, 
over  a  Federation  of  United  States,  and  exercising  powers  to 
w^hich  each  of  those  States  must  of  necessity  be  subordinate. 
.  .  .  The  simple  truth  is,  that  the  United  States,  under 
the  Articles  of  Confederation,  like  the  United  Colonies  after 
the  battle  of  Lexington,  existed  as  a  Sovereign  PoAver  from 
the  necessities  of  the  emergency.  The  Colonies  were  com- 
pacted together  by  the  blows  of  a  common  enemy."  ^ 

§  142.  Views  of  Calhoun  and  Tucker John  C.  Calhoun 

and  John  Randolph  Tucker  have  adopted  what  they  called 
the  separate  or  State  unit  system,  and  by  elaborate  argu- 
ments have  endeavored  to  show  that  the  earlier  Congresses 
could  not  exercise  any  authority  whatever  prior  to  the  adop- 
tion of  the  Articles  of  Confederation,  except  in  pursuance  of 
the  instructions  of  delegates,  and  subsequently  thereto  only 

§  141,  I  tution;  J.  C.  Bancroft  Davis'  notes 

1  Miller's  Lectures  on  the  Consti- '  on  Lecture  I,  p.  57. 
244 


CH.  v.] 


TREATIES  OF  THE  CONFEDERATION. 


§142 


in  pursuance  of  the  strictly  delegated  authority  contained  in 
the  instrument  itself;  in  his  Discourse  on  the  Constitution 
and  Government  of  the  United  States,  Mr.  Calhoun  has  elab- 
oratel}^  stated  this  proposition  as  his  theory  of  State  sover- 
eignty/ and  Mr.  Tucker  in  the  treatise  already  referred  to 
has  elaborated  upon,  and  endeavored  to  support,  it  by  includ- 
ing as  a  part  of  his  work  all  of  the  instructions  of  the  States 
to  their  respective  delegates,^  with  the  evident  intention  of 
proving  thereby  the  limited  bound,  within  which  the  powers 
of  members  individually,  and  of  the  Congress  as  a  whole, 
were  confined;  also  for  the  purpose  of  drawing  a  general 
deduction  therefrom  that  beyond  these  limits  no  power  or 
sovereignty  existed  whatever.  This  view  is  only  sustain- 
able by  eliminating  every  power  which  is  granted,  by  the 
rules  of  international  law  and  b}'^  the  elementary  principles 
of  political  science,  to  all  revolutionary  governments  and  to 
all  central  governments  of  confederations,  and  also  by  assert- 
ing that  the  exercise  of  those  powers  by  the  Continental  Con- 
gress was  wholly  illegal. 


§142. 

1  Works  of  John  C.  Calhoun;  edi- 
ted by  Richard  K.  Cralle,  New 
Yorl£,  April,  1888,  Vol.  1,  p.  110 
et  seq. 

2  John  Randolph  Tucker  declares 
"  The  Journal  of  the  second  session 
of  Congress  opens  thus :  '  A  number 
of  delegates  from  the  colonies  of 
New  Hampshire,  Massachusetts 
Bay,  down  to  Soutli  Carolina, 
agreeable  to  their  appointment  and 
orders  received  from  their  re.syjecfiye 
colonies.''  This  statement  settles 
adversely  the  assumption  of  Judge 
Story  that  the  members  of  Con- 
gress were  not  the  delegated  agents 
of  the  governments  of  the  colonies, 
but  represented  the  original  powers 
of  the  people.  This  record  states 
that  they  sat  under  the  'appoint- 
ment and  orders  received  from  their 
respective  colonies.'  The  author- 
ity given  to  the  deputies   to   this 


Congress  differs  in  terms  from  that 
given  for  the  members  of  the  prior 
Congress.  A  summary  of  each  of 
these  will  be  given  in  a  note." 
Tucker  on  the  Constitution,  vol.  1, 
p.  215,  Chicago,  1899.  Then  fol- 
lows in  a  note  a  summary  of  the 
instructions  of  all  of  the  thirteen 
colonies  with  the  exception  of 
Rhode  Island  and  Georgia,  which, 
Mr.  Tucker  states,  did  not  appear. 
The  conclusion  reached  by  Mr. 
Tucker  is  stated  on  page  217  as 
follows:  "One  thing  is  settled  be- 
yond question;  that  the  dogmatic 
statement  of  Judge  Story  that  the 
Congress  thus  assembled  exercised 
de  facto  and  de  jure  a  sovereign 
authority;  not  as  the  delegated 
agents  of  the  governments  de  facto 
of  the  colonies,  but  in  virtue  of 
original  power  derived  from  the 
pe()i)le,'  is  wholly  unsustained  and 
is  completely  refuted  by  the  facts." 

245 


§  143  TKEATY-:\IAKING  POWER  OF  THE  U.  S.  [CH.  V. 

§  143.  Tiews  of  Calhoun  aud  Tucker  refuted  by  Justice 
Story  and  others. — Both  i\[r.  Calhoun  and  Mr.  Tucker,  how- 
ever, seem  to  have  entirely  lost  sight  of  the  propositions 
maintained  by  Story,^  Curtis,^  Cooley  ^  Miller,  Bancroft  Davis, 

§143. 

1  JUDGE  story's  views. 

"In  confirmation  of  these  views,  it  may  not  be  without  use  to  refer 
to  the  opinions  of  some  of  our  most  eminent  judges,  delivered  on  oc- 
casions which  required  an  exact  examination  of  the  subject.  In  Chis- 
holm's  Executors  vs.  The  State  of  Georyia,  Mr.  Chief  Justice  Jay,  who 
was  equally  distinguished  as  a  Revolutionary  statesman  and  a  gener<al 
jurist,  expressed  himself  to  the  following  effect:  'The  Revolution,  or 
rather  the  Declaration  of  Independence,  found  the  people  already  united 
for  general  purposes,  and  at  the  same  time  providing  for  their  more 
domestic  concerns  by  State  conventions  and  other  temporary  arrange- 
ments. From  the  crown  of  Great  Britain  the  sovereignty  of  their  coun- 
try passed  to  the  people  of  it;  and  it  was  then  not  an  uncommon  opinion 
that  the  unappropriated  lands  which  belonged  to  that  crown  passed, 
not  to  the  people  of  the  colony  or  States  within  whose  limits  they  were 
situated,  but  to  the  whole  people.  On  whatever  principle  this  opinion 
rested,  it  did  not  give  way  to  the  other;  and  thirteen  sovereignties  were 
considered  as  emerging  from  the  principles  of  the  Revolution,  combined 
by  local  convenience  and  considerations.  The  people,  nevertheless, 
continued  to  consider  themselves,  in  a  national  point  of  view,  as  one 
people;  and  they  continued  without  interruption  to  manage  their  na- 
tional concerns  accordingly.'  In  Penhullow  vs.  Doane,  Mr.  Justice 
Paterson,  who  was  also  a  revolutionary  statesman,  said,  speaking  of 
the  period  before  the  ratification  of  the  confederation:  'The  jiowers 
of  Congress  were  revolutionary  in  their  nature,  arising,  out  of  events 
adequate  to  every  national  emergency,  and  coextensive  with  the  object 
to  be  attained.  Congress  was  the  general,  supreme,  and  controlling 
council  of  the  nation,  the  centre  of  force,  and  the  sun  of  the  political 
system.  Congress  raised  armies,  fitted  out  a  navy,  and  prescribed  rules 
for  their  government,  etc.  These  high  acts  of  sovereignty  were  sub- 
mitted to,  acquiesced  in,  and  approved  of  by  the  people  of  America,  etc. 
The  danger  being  imminent  and  common,  it  became  necessary  for  the 
people  or  colonies  to  coalesce  aud  act  in  concert,  in  order  to  divert  or 
break  the  violence  of  the  gathering  storm.  They  accordingly  grew 
into  union,  and  formed  one  great  political  body,  of  which  Congress  was 
the  directing  principle  and  soul,  etc.  The  truth  is,  that  the  States, 
individually,  were  not  known  nor  recognized  as  sovereign  bj'  foreign 
nations,  nor  are  they  now.  The  States  collectively  under  Ccmgress,  as 
their  connecting  point  or  head,  were  acknowledged  by  foreign  powers 
as  sovereign,  particularly  in  that  acceptation  of  the  term  which  is  ap- 
plicable to  all  great  national  concerns,  and  in  the  exercise  of  which 

-  For  note  2,  see  p.  247. 

8  For  note  3,  see  p.  248. 

246 


CH.  v.]  TREATIES  OF  THE  CONFEDERATION.  §  143 

and  others,  who  support  the  broader  doctrine  that  the  ideas 
of  independence  and  unity  were  of  twin  birth  and  co-ordinate 

other  sovereigns  would  be  more  immediately  interested.'  In  Ware  vs. 
Hylton,  Mr.  Justice  Chase,  himself  also  a  Revolutionary  statesman,  said: 
'It  has  been  inquired,  what  i^owers  Congress  possessed  from  the  first 
meeting  in  September,  1774,  until  the  ratification  of  tlie  C(mfederatioa 
on  the  1st  of  March,  1781.  It  appears  to  me  that  the  powers  of  Congress 
during  that  whole  period  were  derived  from  the  people  they  represented, 
expressly  given  through  the  medium  of  their  State  conventions  or  State 
legislatures;  or  that  after  they  were  exercised,  they  were  impliedly  rati- 
fied by  the  acquiescence  and  obedience  of  the  people,  etc.  Tlie  powers 
of  Congress  originated  from  necessity,  and  arose  out  of  it,  and  were 
only  limited  by  events;  or,  in  other  words,  they  were  revolutionary  in 
their  nature.  Their  extent  depended  on  the  exigencies  and  necessities 
of  public  affairs.  I  entertain  this  general  idea,  that  the  several  States 
retained  all  internal  sovereignty;  and  that  Congress  properly  possessed 
the  rights  of  external  sovereignty.  In  deciding  on  the  powers  of  Con- 
gress, and  of  the  several  States  before  the  confederation,  I  see  but  one 
safe  rule,  namely,  that  all  the  powers  actually  exercised  by  Congress 
before  that  period  were  rightfully  exercised  on  the  presumption,  not  to 
be  controverted,  that  they  were  so  authorized  by  the  people  they  rep- 
resented, by  an  express  or  implied  grant;  and  that  all  the  powers  exer- 
cised by  the  State  conventions  or  State  legislatures  were  also  rightfully 
exercised  on  the  same  presumption  of  authority  fi'om  the  people.'  " 
Commentaries  on  the  Constitution  of  the  United  States  by  Joseph  Story, 
L.L.  D.  5th  edition,  Boston,  1891,  vol.  I,  §  216,  pp.  159-160. 

2  MR.    CURTIS'    VIEWS. 

The  instructions  to  delegates  also  appear  in  a  condensed  form  as  a 
foot-note  to  pnges  11  and  12  of  volume  1,  Curtis'  Constitutional  His- 
tory of  the  United  States.  Mr.  Curtis  has  followed  the  views  of  Mr. 
Justice  Story;  his  views  are  expressed  as  follows,  pages  25  and  26: 

"  It  is  apparent,  therefore,  that,  previously  to  the  Declaration  of  In- 
dependence, the  people  of  the  several  cohmies  bad  establislied  a  na- 
tional government  of  a  revolutionary  character,  which  undertook  to 
act,  and  did  act,  in  the  name  and  with  the  general  consent  of  the  in- 
habitants of  the  country.  This  government  was  established  by  the 
union,  in  one  body,  of  delegates  representing  the  people  of  each  colony; 
who,  after  tlicy  had  thus  united  for  national  purposes,  i)roceeded,  in 
their  respective  jurisdictions,  by  means  of  conventions  and  other  tem- 
porary arrangements,  to  provide  for  tlieir  domestic  concerns  by  the  es- 
tablishment of  local  governments,  whicli  should  be  the  successors  of 
that  authority  of  the  Britisli  crown  which  they  had  'everywhere  sup- 
pressed.' The  fact  that  these  local  or  state  governments  were  not 
formed  until  a  union  of  the  people  of  tiie  different  colonies  for  na- 
tional purposes  had  already  taken  place,  and  until  the  Congress  had 
authorized  and  recommended  their  establishment,  is  of  great  import- 
ance in  the  constitutional  history  of  this  country;  for  it  shows  that  no 

247 


§  143  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  V. 

growth,  and  that  it  is  only  through  the  central  body 
that  those  great  powers  which  none  of  the  States  possess 

colony,  acting  separately  for  itself,  dissolved  its  own  allegiance  to  the 
British  crown,  but  that  this  allegiance  was  dissolved  by  the  supreme 
authority  of  the  people  of  all  the  colonies,  acting  through  their  general 
agent,  the  Congress,  and  not  only  declaring  that  the  authority  of  Great 
Britain  ought  to  be  suppressed,  but  recommending  that  each  cohmy 
should  supplant  that  authority  by  a  local  government,  to  be  framed  by 
and  for  the  people  of  the  colony  itself. 

"  The  powers  exei'cised  by  the  Congress,  before  the  Declaration  of 
Independence,  show,  therefore,  that  its  functions  were  those  of  a  revo- 
lutionary government.  It  is  a  maxim  of  pohtical  science,  that,  when 
sttch  a  government  has  been  instituted  for  the  accomplishment  of  great 
purposes  of  ijublic  safety,  its  powers  are  limited  only  by  the  necessities 
of  the  case  out  of  which  they  have  arisen,  and  of  the  objects  for  which 
they  were  to  be  exercised.  When  the  acts  of  such  a  government  are 
acquiesced  in  by  the  people,  they  are  presumed  to  have  been  ratified  by 
the  people.  To  the  case  of  our  Revolution  these  principles  are  strictly 
applicable  throughout.  The  Congress  assumed  at  once  the  exercise  of 
all  the  powers  demanded  by  the  public  exigency,  and  their  exercise  of 
those  powers  was  fully  acquiesced  in  and  confirmed  by  the  people.  It 
does  not  at  all  detract  from  the  authoritative  character  of  their  acts, 
nor  diminish  the  real  powers  of  the  Revolutionary  Congress,  that  it 
was  obliged  to  rely  on  local  bodies  for  the  execution  of  most  of  its  or- 
ders, or  that  it  couched  many  of  those  orders  in  the  form  of  recom- 
mendations. They  were  complied  with  and  executed,  in  point  of  fact, 
by  the  provincial  congresses,  conventions,  and  local  committees  to  such 
an  extent  as  fully  to  confirm  the  revoltitionary  powers  of  the  Congress, 
as  the  guardians  of  the  rights  and  liberties  of  the  country.  But  we 
shall  see,  in  the  further  progress  of  the  history  of  the  Congress,  that 
while  its  powers  remained  entirely  revolutionary,  and  were  consequently 
coextensive  with  the  great  national  objects  to  be  accomplished,  the 
want  of  the  proper  machinery  of  civil  government  and  of  independent 
agents  of  its  own  rendered  it  wholly  incapable  of  wielding  those  powers 
successfully." 

3  JUDGE  COOLET'S  VIEWS. 

"The  government  of  the  United  States  is  the  existing  representative 
of  the  national  government  which  has  always  in  some  form  existed  over 
the  American  states.  Before  the  Revolution,  the  powers  of  government, 
which  were  exercised  over  all  the  colonies  in  common,  were  so  exercised 
as  pertaining  either  to  the  Crown  of  Great  Britain  or  to  the  Parliament; 
but  the  extent  of  those  powers,  and  how  far  vested  in  the  Crown  and 
how  far  in  the  Parliament,  were  questions  never  definitely  settled,  and 
which  constituted  subjects  of  dispute  between  the  mother  country 
and  the  people  of  the  colonies,  finally  resulting  in  hostilities.  That  the 
power  over  peace  and  war,  the  general  direction  of  commercial  inter- 
course with  other  nations,  and  the  general  control  of  such  subjects  as 
fall  within  the  province  of  international  law,  were  vested  in  the  home 

248 


CH.  v.]     TREATIES  OF  THE  CONFEDERATION.       §  143 

in  their  individual,  or,  as  the  disciples  of  the  States'  Rights 
School  call  it,  their  sovereign,  capacity,  can  be  exercised  in 
any  manner  whatever,  either  in  theory  or  in  practice. 

government,  and  that  the  colonies  were  not,  therefore,  sovereign  States, 
in  tlie  full  and  proper  sense  of  that  term,  were  propositions  never  seri- 
ously disputed  in  America,  and  iudeed  were  often  formally  conceded; 
and  the  disputes  i-elated  to  questions  as  to  what  were  or  were  uot  mat- 
ters of  internal  regulation,  the  cimtrol  of  which  the  colonists  insisted 
should  be  left  exclusively  to  themselves. 

"Besides  the  tie  uniting  the  several  colonies  through  the  Crown  of 
Great  Britain,  there  had  always  been  a  strong  tendency  to  a  more  inti- 
mate and  voluntary  union,  whenever  circumstances  of  danger  threatened 
them;  and  this  tendency  led  to  the  New  England  Confederacy  of  1643, 
to  the  temporary  Congress  of  1690,  to  the  plan  of  union  agreed  upon  in 
Convention  of  17')4,  but  rejected  by  the  colonies  as  well  as  the  Crown, 
to  the  Stamp  Act  Congress  of  1765,  and  finally  to  the  Continental  Con- 
gress of  1774.  When  the  difficulties  with  Great  Britain  culminated  in 
actual  war,  the  Congress  of  1775  assumed  to  itself  those  powers  of 
external  control  which  before  had  been  conceded  to  the  Crown  or  to  the 
Parliament,  together  with  such  other  powers  of  sovereignty  as  it  seemed 
essential  a  general  government  should  exercise,  and  thus  became  the 
national  government  of  the  United  Colonies.  By  this  body,  war  was 
conducted,  independence  declared,  treaties  formed,  and  admiralty  juris- 
diction exercised.  It  is  evident,  therefore,  that  the  States,  though  de- 
clared to  be  '  sovereign  and  independent,'  were  never  strictly  so  in  their 
individual  character,  but  were  always,  in  respect  to  the  higher  powers  of 
sovereignty,  subject  to  the  control  of  a  central  authority,  and  were 
never  separately  known  as  members  of  the  family  of  nations.  The  Dec- 
laration of  Independence  made  them  sovereign  and  independent  States, 
by  altogether  abolishing  tlie  foreign  jurisdiction,  and  substituting  a  na- 
tional govei'nment  of  their  own  creation. 

"  But  while  national  powers  were  assumed  by  and  conceded  to  the  Con- 
gress of  1775-76,  that  body  was  nevertheless  strictly  revolutionary  in 
its  character,  and,  like  all  revolutionary  bodies,  its  authority  was  un- 
defined, and  could  be  limited  on]y,  first,  by  instructions  to  individual 
delegates  by  the  States  choosing  tliem;  second,  by  the  will  of  the  Con- 
gress; and  third,  by  the  power  to  enforce  that  will.  As  in  the  latter 
particular  it  was  essentially  feeble,  the  necessity  for  a  clear  specifica- 
tion of  powers  which  should  be  exercised  by  the  national  government 
became  speedily  apparent,  and  led  to  the  adoption  of  the  Articles  of 
Confederation.  But  those  articles  did  not  concede  the  full  measure  of 
power  essential  to  the  efficiency  of  a  national  government  at  home,  the 
enforcement  of  respect  abroad,  or  the  preservation  of  the  public  faith 
or  public  credit;  and  the  difficulties  experienced  induced  the  election 
of  delegates  to  the  Constitutional  Convention  held  in  1787,  by  which  a 
constitution  was  formed  which  was  put  into  operation  in  1789.  As 
much  larger  powers  were  vested  by  this  instrument  in  the  general  gov- 
ernment than  had  ever  been  exercised  in  this  country  by  cither  the 

249 


§  143  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  V. 

Mr.  Davis  has  rendered  an  inestimable  service  in  coUatinjr 
the  incidents  in  which,  prior  to  the  Constitution,  Congress 
exercised  the  functions  of  a  national  government,  notably 

Crown,  the  Parliament,  or  the  Revolutionary  Congress,  and,  larger  than 
those  conceded  to  the  Congress  under  the  Articles  of  Confederation,  the 
assent  of  the  people  of  the  several  States  was  essential  to  its  acceptance, 
and  a  provision  was  inserted  in  the  Constitution  that  the  ratification  of 
the  conventions  of  nine  States  should  be  sufficient  for  the  establishment 
of  the  Constitution  between  the  States  so  ratifying  the  same.  In  fact, 
the  Constitution  was  ratified  by  conventions  of  delegates  chosen  by  the 
people  in  eleven  of  the  States,  before  the  new  government  was  organized 
under  it;  and  the  remaining  two,  ISTorth  Carolina  and  Rhode  Island,  by 
their  refusal  to  accept,  and  by  the  action  of  the  others  in  proceeding 
separately,  were  excluded  altogether  from  that  national  jurisdiction 
which  before  had  embraced  them.  This  exclusion  was  not  warranted 
by  anything  contained  in  the  Articles  of  Confederation,  which  purported 
to  be  articles  of  '  perpetual  union;'  and  the  action  of  the  eleven  States 
in  making  radical  revision  of  the  Constitution,  and  excluding  their  as- 
sociates for  refusal  to  assent,  was  really  revolutionary  in  character,  and 
only  to  be  defended  on  the  same  ground  of  necessity  on  which  all  revo- 
lutionary action  is  justified,  and  which  in  this  case  was  the  absolute 
need,  fully  demonstrated  by  experience,  of  a  more  efficient  general  gov- 
ernment. 

"  Left  at  liberty  now  to  assume  complete  powers  of  sovereignty  as  in- 
dependent governments,  these  two  States  saw  fit  soon  to  resume  their 
place  in  the  American  family,  under  a  permission  contained  in  the 
Constitution;  and  new  States  have  since  been  added  from  time  to  time, 
all  of  them,  with  a  single  exception,  organized  by  the  consent  of  the 
general  government,  and  embracing  territory  previously  under  its  con- 
trol. The  exception  was  Texas,  which  had  previously  been  an  inde- 
pendent sovereign  State,  but  which,  by  the  conjoint  action  of  its  govern- 
ment and  that  of  the  United  States,  was  received  into  the  Union  on  an 
equal  footing  with  the  other  States. 

"  Without,  therefore,  discussing,  or  even  designing  to  allude  to  any 
abstract  theories  as  to  the  precise  position  and  actual  power  of  the 
several  States  at  the  time  of  forming  the  present  Constitution,  it  may 
be  said  of  them  generally  that  they  have  at  all  times  been  subject  to 
some  common  national  government,  which  has  exercised  control  over 
the  subjects  of  war  and  peace,  and  other  matters  pertaining  to  external 
sovereignty;  and  that  when  the  only  three  States  which  ever  exercised 
complete  sovereignty  accepted  the  Constitution  and  came  into  the  Union, 
on  an  equal  footing  with  all  the  other  States,  they  thereby  accepted 
the  same  relative  position  to  the  general  government,  and  divested 
themselves  permanently  of  those  national  powers  which  the  others  had 
never  exercised.  And  the  assent  once  given  to  the  Union  was  irrevo- 
cable. 'The  Constitution  in  all  its  provisions  looks  to  an  indestruct- 
ible Union  composed  of  indestructible  States.  {Texas  vs.  White, 
Chase,  Ch.  J.,  7  Wallace  700,  p.  725.) '"  Cooley's  Constitutional  Lim- 
250 


CH.  v.]     TREATIES  OF  THE  CONFEDEEATION.       §  144 

in  cases  of  prize  capture,  and  the  acquisition  of  territory, 
neither  of  which  functions  could  have  been  exercised  by  a 
government  which  did  not  possess  plenary  power  and  com- 
plete sovereignty  and  nationality.'^ 

§  144.  Views  of  Justice  Miller  and  Mr.  Davis. — The  ap- 
parent repetition  of  some  of  the  points  elaborated  in  the 
preceding  chapter,  and  which  will  be  referred  to  again  at  a 
later  point  in  this  volume,  is  due  to  the  fact  that  we  cannot 
properly  trace  the  history  of  the  treaty-making  power  prior 
to  the  Constitution,  or  reconcile  the  well-known  and  conceded 
weakness  of  the  Union  under  the  Confederation,  with  the 
strong  powers  that  were  vested  in  it  in  regard  to  those  na- 
tional matters,  unless  we  keep  them  constantly  and  promi- 
nently in  view ;  it  is  necessary  also  to  appreciate  that  the 
Aveakness  of  the  Confederacy  was  not  due  to  a  lack  of  power 
to  decree,  but  of  power  to  compel  obedience  to  decrees  when 
made,  in  fact,  as  Mr.  Davis  says,  "  in  studying  the  ante-Con- 

itations,  Chapter  II.  pp.  7-11,  and  see  numerous  cases  cited,  and  also 
quotations  from  tlie  Federalist. 

STOKY. 

"  The  same  body,  in  1776,  took  bolder  steps,  and  exerted  powers 
which  could  in  no  other  manner  be  justified  or  accounted  for,  than  upon 
the  supposition  that  a  national  union  for  national  purposes  already  ex- 
isted, and  that  the  Congress  was  invested  with  sovereign  power  over  all 
the  colonies  for  the  purpose  of  preserving  the  common  rights  and  liber- 
ties of  all.  They  accordingly  authorized  general  hostilities  against  the 
persons  and  property  of  Bi'itish  subjects;  they  opened  an  extensive 
commerce  with  foreign  countries,  regulating  the  whole  subject  of  im- 
ports and  exports;  they  authorized  the  formation  of  new  governments 
in  the  colonies;  and  finally  they  exercised  the  sovereign  prerogative  of 
dissolving  the  allegiance  of  all  colonies  to  the  British  crown.  The 
validity  of  these  acts  was  never  doubted  or  denied  by  the  people.  On 
the  contrary,  they  became  the  foundation  upon  which  the  superstruc- 
ture of  the  liberties  and  independence  of  the  United  States  has  been 
erected.  Whatever,  then,  may  be  the  theories  of  ingenious  men  on  the 
subject,  it  is  historically  true  that  before  the  Declaration  of  Independence 
these  colonies  were  not,  in  any  absolute  sense,  sovereign  states;  that 
that  event  did  not  find  them  or  make  them  such;  but  that  at  the  moment 
of  their  separation  they  were  under  the  domain  of  a  superior  controll- 
ing national  government  whose  powers  were  vested  in  and  exercised  by 
the  general  Congress  with  the  consent  of  the  people  of  all  the  States." 
Commentaries  on  the  Constitution  of  the  United  States,  by  Joseph 
Story,  L.L.  D.,  5th  Ed.,  Boston,  1891,  vol.  1,  §  214,  p.  157. 

*  For  views  of  Justice  Miller  and  Mr.  Davis  see  §  144  and  notes  thereto. 

251 


§144 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  V. 


stitutional  history  of  the  United  States,  we  may  often  find 
Congress  weak  in  action,  but  never  irresolute  or  weak  in  as- 
serting its  Federal  powers.  Before  the  Declaration  of  Inde- 
pendence it  claimed  and  exercised  the  jSational  Powers  which 
until  then  had  been  wielded  by  the  King  of  Great  Britain. 
AVhen  that  Declaration  was  proclaimed,  it  pressed  this  claim 
with  stronger  emphasis,  if  not  with  better  right.  This  power 
it  handed  over  to  the  government  of  the  Confederation,  which 
was  in  fact  the  Congress  itself;  and  that  government,  in  its 
turn  deposited  the  power  in  the  new  Union,  as  defined  by 
the  Constitution."  ^ 


§144. 

1  Miller's  Lectures  on  the  Con- 
stitutiou;  J.  C.  Bancroft  Davis' 
notes  to  Lecture  I,  pp.  57-8.  In 
the  same  chapter  (pp.  36-37)  Mr. 
Davis  says: 

"  This  outbreak  of  a  state  of  war 
found  in  each  Colony  or  Province, 
an  organized  government  with  sep- 
arate functions,  exei'cising  a  lim- 
ited sovereignty  under  the  king  of 
Great  Britain.  Many  of  the  broader 
powers  and  functions  of  National 
Sovereignty,  which  the  Constitu- 
tion now  places  in  the  government 
of  the  United  States,  then  resided 
in  the  British  king  and  Parliament. 
"When  British  sovereignty  fell,  such 
powers  were  assumed  and  exer- 
cised, without  question,  by  the  Con- 
gress of  the  United  Colonies,  be- 
fore the  United  States  existed  as  an 
independent  nation;  months  be- 
fore the  Articles  of  Confederation 
were  agreed  to;  years  before  they 
became  operative  by  receiving  the 
assent  of  all  the  States.  They  were 
never  enjoyed  or  exercised  by  the 
states  separately;  and  conse- 
quently, as  an  historic  fact,  inde- 
pendently of  theory,  they  could  not 
have  been  retained  when  the  States 
conferred  upon  the  general  Gov- 
ernment other  enumerated  powers 
in  the  Articles  of  Confederation. 

252 


"  Unconsciously  to  themselves  the 
people  of  the  United  States  were 
absorbed  into  a  new  nationality  by 
the  very  fact  of  their  combined  re- 
sistance to  Great  Britain.  They 
carried  on  war;  they  officered  and 
maintained  armies;  thoy  commis- 
sioned vessels  of  war;  they  bor- 
rowed money  and  issued  evidences 
of  debt  therefor;  they  created  prize 
courts;  they  acquired  territory  and 
determined  what  the  nature  of  its 
civilization  should  be;  they  made 
treaties  with  foreign  powers;  and 
in  many  ways,  both  before  and  af- 
ter the  adoption  of  the  Articles  of 
Confederation,  they  exercised  the 
highest  powers  of  sovereignty. 
"  This  Congress  was  both  the  Ex- 
ecutive and  the  Legislature  of  the 
Nation.  It  was  the  body  which 
framed  the  Articles  of  Confedera- 
tion, and  manj^  of  its  members  were 
also  in  the  Convention  which 
framed  the  Constitution  of  the 
United  States.  Unless  that  Consti- 
tution is  to  be  construed  theoretic- 
ally, and  without  regard  to  the  in- 
cidents of  the  national  history  of 
which  it  was  the  outcome,  a  knowl- 
edge of  what  that  Congress  did,  de- 
rived from  historical  investigation, 
must  help  us  in  comprehending 
what  sort  of  a  government  the  fram- 
ers  of  the  Constitution  intended  to 


CH.  v.] 


TREATIES  OF  THE  CONFEDERATION. 


§146 


§  145.  The  Continental  Congress  a  revolutionary  gov- 

ernment. — These  general  statements  in  regard  to  the  high 
acts  of  sovereignty  exercised  by  the  earUer  Congresses  are 
strengthened  by  an  examination  of  the  history  of  those  or- 
ganizations. The  first  Continental  Congress  assembled  at 
Philadelphia  on  September  5,  1774,  and  organized  itself  as  a 
deliberative  body  representing  the  various  colonies  of  North 
America.  It  was  essentially  a  revolutionary  government, 
the  outgrowth  of  necessity  for  immediate  and  united  action 
of  the  colonies ;  it  consisted  of  delegates,  or,  as  they  were 
called  in  many  pr'oceedings,  committees  of  the  colonies. 
Eleven  colonies  only  were  represented  on  the  first  day.  At 
that  time  no  Articles  of  Confederation  existed,  nor  in  fact 
were  there  any  written  articles  which  either  held  the  colo- 
nies together,  or  clothed  the  delegates  with  any  general 
powers;  nor  were  there  any  estabhshed  principles  at  the 
outset  by  which  the  nature  of  the  Union  could  be  deter- 
mined ;  it,  therefore,  became  necessary  at  once  to  formulate 
some  system  of  government  which  should  be  binding  upon 
all  the  different  colonies  or  states,  as  from  that  time  there- 
after they  have  ever  since  been  called.^ 

§  146.  Nature  of  Congress  prior  to  Constitution The 

Continental  Congress  acted  somewhat  in  the  nature  of  a 
general  committee,  or  commission,  for  the  thirteen  colonies 
without  any  constitutional  foundation  or  written  agreement 
whatever,  from  1774  until  1777;  the  Articles  of  Confedera- 
tion were  completed  and  offered  to  the  States  for  their  rati- 
fication in  November,  1777,  but  the  assent  of  all  of  the  States 
was  not  obtained  until  March,  1781.^     During  this  period  of 


establish.  To  cover  this  whole 
ground  would  be  to  write  the  legis- 
lative history  of  those  eventful  four- 
teen years.  I  select  from  all  its 
legislation  three  subjects:  1.  The 
Appellate  Prize  Courts;  2.  The 
Treaties  negotiated  with  Foreign 
Powers;  3.  The  acquisition  of  the 
Territory  to  the  northwest  of  the 
Ohio,  and  the  exclusion  of  shivery 
from  it." 


§145. 

1  For  an  extended  history  of  the 
earlier  Congresses  of  the  United 
States,  see  Curtis'  Constitutional 
History  of  the  United  States,  edi- 
tion of  1889,  New  York,  vol.  I, 
chapters  I-IV,  and  Story's  Com- 
mentaries,, vol.  I,  §  198. 

§14G. 

^For  dates  of  adoption  of  Arti- 
cles of  Confederation,  see  note  1  to 
§  148,  p.  257,  post. 

253 


§  147  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  V. 

nearly  seven  years  the  basis  for  the  existence  of  the  Conti- 
nental Congress  was  simply  the  recognized  unity  of  the 
States  as  a  matter  of  necessity  and  policy ;  all  of  the  States 
from  time  to  time  sent  delegates,  the  number  var3'ing  ac- 
cording to  the  whim  or  fancy  of  each  State,  for  as  each  was 
allowed  to  determine  the  number  of  its  delegates  within  cer- 
tain  bounds,  no  undue  advantage  was  obtained  by  increasing 
the  number  of  delegates  as  a  single  vote  was  allowed  to  each 
State,  regardless  of  the  number  of  delegates  representing  it. 
§  147.  ludepeudeuce,  preservation  of  States'  rights, 
National  unity — all  united  in  original  and  subsequent  gov- 
ernments of  United  States At  the  first  meeting  of  these 

delegates  questions  naturally  arose  in  regard  to  the  extent 
of  the  national,  or  federal  rights,  Avhich  were  exercisable  b}'- 
the  Congress,  as  distinguished  from  the  rights  of  the  States, 
whose  powers  as  to  local  affaii's  were  not  to  be  encroached 
upon  any  more  than  was  absolutely  necessary ;  great  diffi- 
culty was  encountered  in  framing  a  system  of  government 
and  vesting  the  Continental  Congress  with  governmental 
powers  owing  to  the  gi-eat  jealousy  with  ^vhich  the  rights 
of  the  States  were  closel}''  guarded ;  thus  at  the  very  outset 
of  our  recorded  political  history  we  find  that  the  three  great 
ideas,  or  principles,  which  have  ever  since  dominated  the 
government  of  the  American  people  had  already  sprung 
into  existence,  and  entered  into  the  formation  of  the  govern- 
ment, to  wit :  Independence,  Preservation  of  States'  rights, 
and  Xational  Unity.^ 

§147. 

1  NATIONAL  UNITY   PRIOR  TO  DECLARATION  OF  INDEPENDENCE. 

The  first  page  of  Bancroft's  History  of  the  Constitution  of  the  United 
States  is  entitled  "  A  retrospect — Movements  towards  Union,  1641-1781," 
see  also  Elliott's  Debates,  vol.  I,  pp.  42-60,  "  Gradual  Approaches 
towards  Independence." 

Tliere  is  an  exposition  of  this  national  unity,  as  it  existed  between 
the  colonies,  in  the  compilation  of  Select  Charters  and  Other  Documents 
illustrative  of  American  history  from  1606  to  1775,  edited  with  notes 
by  William  Macdonald,  published  by  the  Macmillan  Company,  New 
York  and  Loudon,  1899;  this  volume  contains  eighty  documents  affecting 
the  relations  of  the  American  colonies  with  European  countries,  espe- 
cially Great  Britain,  and  with  each  other.  As  stated  by  Mr.  Macdonald 
in  his  preface,  it  is  a  companion  volume  to  his  Select  Documents  Illus- 
trative of  the  History  of  the  United  States,  1776-1861,  also  published 

254 


CH.  v.]  TREATIES  OF  THE  CONFEDERATION.  §  147 

These  principles  have  consistently  and  concurrently  existed 
since  that  first  meeting  of  the  Continental  Congress  in  Phila- 

by  the  Macmillan  Company,  New  York  and  London.  Some  of  these 
documents  are  referred  to  in  the  following  note: 

On  Thursday,  October  20,  1774,  the  following  "Association"  was 
read  in  the  Continental  Congress  and  signed;  it  begins  with  the  usual 
preamble: 

"We,  his  Majesty's  most  loyal  subjects,  the  delegates  of  the  several 
colonies  of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island,  Connec- 
ticut, New  York,  New  Jersey,  Pennsylvania,  the  three  lower  counties  of 
New  Castle,  Kent,  and  Sussex,  on  Delaware,  Maryland,  Virginia,  North 
Carolina,  and  South  Carolina,  deputed  to  represent  them  in  a  Cnutiuental 
Congress,  held  in  the  city  of  Philadelphia,  on  the  fifth  day  of  Sejitem- 
ber,  1774,  avowing  our  allegiance  to  his  Majesty;  our  affection  and  regard 
for  our  fellow-subjects  in  Great  Britain  and  elsewhere;  affected  with  the 
deepest  anxiety  and  most  alarming  appi'ehensions  at  those  grievances  and 
distresses  with  which  his  Majesty's  American  subjects  are  opjiressed; 
and  having  taken  under  our  most  serious  deliberation  the  state  of  the 
whole  Continent,  find  that  the  present  unhappy  situation  of  our  affairs 
is  occasioned  by  a  ruinous  system  of  Colonial  Administration,  adopted 
by  the  British  Ministry  about  the  year  1763,  evidently  calculated  for 
enslaving  these  Colonies,  and,  with  them,  the  British  Empire." 

After  recitals  of  their  grievances  the  non  importation  agreement  of 
1774  was  made;  the  association  is  referred  to  here  because  throughout 
the  entire  document,  which  appears  at  length  on  pp.  443-447,  sec- 
ond volume  of  Curtis'  Constitutional  History  of  the  United  States,  the 
colonies  are  referred  to  as  a  single  territory,  America,  and,  except  in 
the  recital,  there  is  no  reference  to  the  separate  colonies;  the  tenor  of 
the  instrument  shows  clearly  that  in  this  matter  they  considered  them- 
selves a  unit. 

On  Thursday,  July  6,  1775,  in  the  Continental  Congress  a  declaration 
was  prepared  by  the  representatives  of  the  United  Colonies  of  North 
America  setting  forth  the  causes  for  the  necessity  of  taking  up  arms, 
in  the  course  of  which  the  following  occurs: 

"  Our  cause  is  just.  Our  union  is  perfect.  Our  internal  resources 
are  great,  and,  if  necessary,  foreign  assistance  is  undoubtedly  attain- 
able. We  gratefully  acknowledge,  as  single  instances  of  the  Divine 
favour  towards  us,  that  His  providence  would  not  permit  us  to  be  called 
into  this  severe  controvei'sy  until  we  were  grown  up  to  our  present 
strength,  had  been  previously  exercised  in  warlike  operations,  and  pos- 
sessed of  the  means  of  defending  ourselves.  AVith  hearts  fortified  with 
these  animating  reflections,  we  most  solemnly,  before  God  and  the  world, 
declare,  that,  exerting  the  utmost  energy  of  those  powers  which  our 
beneficent  Creator  hath  graciously  bestowed  upon  us,  the  arms  we  have 
been  compelled  by  our  enemies  to  assume,  we  will,  in  defiance  of  every 
hazard,  with  unabating  firmness  and  perseverance,  employ  for  the  pres- 
ervation of  our  liberties;  being,  with  one  mind,  resolved  to  die  freemen 
rather  than  live  slaves. 

255 


§  147  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  V. 

delphia  in  1774;  they  have  never  conflicted  with  each  other 
except  when  the  advocates  of  one  principle  have  endeavored 
to  give  it  undue  prominence  over  the  others ;  when,  however, 
each  is  given  its  due  and  proper  sphere,  they  co-operate  hke 

"Lest  this  Declaration  should  disquiet  the  minds  of  our  friends  and 
fellow-subjects  in  any  part  of  the  Empire,  we  assure  them  that  we  mean 
not  to  dissolve  that  union  which  has  so  long  and  so  happily  subsisted 
between  us,  and  which  we  sincerely  wish  to  see  restored.  Necessity 
has  not  yet  driven  us  into  that  desperate  measure,  or  induced  us  to 
excite  any  other  nation  to  war  against  them.  We  have  not  raised  armies 
with  ambitious  designs  of  separating  from  Great  Britain,  and  establish- 
ing independent  states.  We  fight  not  for  glory  or  for  conquest.  We 
exhibit  to  mankind  the  remarkable  spectacle  of  a  people  attacked  by 
unprovoked  enemies,  without  any  imputation  or  even  suspicion  of  of- 
fense. They  boast  of  their  privileges  and  civilization,  and  yet  profiEer 
no  milder  conditions  than  servitude  or  death. 

"  In  our  own  native  land,  in  defence  of  the  freedom  that  is  our  birth- 
right, and  which  we  ever  enjoyed  till  the  late  violation  of  it;  for  the 
protection  of  our  property,  acquired  solely  by  the  honest  industry  of 
our  forefathers  and  ourselves,  against  violence  actually  offered,  we  have 
taken  up  arms.  We  shall  lay  them  down  when  hostilities  shall  cease 
on  the  part  of  the  aggressors,  and  all  danger  of  their  being  renewed  shall 
be  removed,  and  not  before."  1  Journal  of  Congress,  p.  134,  et  seq., 
Macdonald's  Select  Charters,  p.  374,  Curtis'  Constitutional  History  of 
the  United  States,  vol.  II.  p.  4.53,  see  p.  457. 

"We  thus  see  that  from  the  first  dawn  of  our  national  existence, 
through  every  form  which  it  has  yet  assumed,  a  dual  character  has  con- 
stantly attended  our  political  condition.  A  nation  has  existed  because 
there  has  all  along  existed  a  central  authority  having  the  right  to  pre- 
scribe the  rule  of  action  for  the  whole  people  cm  certain  subjects,  occa- 
sions and  relations.  In  this  sense  and  in  no  other,  to  this  extent  but 
no  further,  we  have  been  since  1776,  and  are  now  a  nation.  At  the  be- 
ginning the  limits  of  this  central  authority,  in  respect  to  which  we  are 
a  nation,  were  defined  by  general  popular  understanding;  but  more 
recently  they  were  fixed  in  written  terms  and  public  charters,  first  by 
the  Articles  of  Confederation,  and  ultimately,  with  a  more  enlarged 
scope  and  a  more  efficient  machinery,  by  the  Constitution.  The  latter 
instrument  made  this  central  authority  a  government  proper,  but  with 
limited  and  defined  powers,  which  are  supreme  witliin  their  own  appro- 
priate sphere.  In  like  manner,  from  the  beginning,  there  has  existed 
another  political  body — distinct,  sovereign  within  its  own  sphere,  and 
independent  as  to  all  the  powers  and  objects  of  government  not  ceded 
or  restrained  under  the  Federal  Constitution.  This  body  is  the  state — 
a  political  corporation  of  which  each  inhabitant  is  a  subject,  as  he  is  at 
the  same  time  a  subject  of  that  other  political  corporation  known  as 
the  United  States."  Curtis'  Constitutional  History  of  the  United  States, 
vol.  II.  p.  551. 

256 


CH.  v.] 


TREATIES  OF  THE  CONFEDERATION. 


§149 


the  parts  of  a  perfect  machine,  each  one  performing  its  own 
duties  without  interfering  with  the  others,  but  all  so  neces- 
sary for  the  perfect  working  of  the  whole  machine  that  if 
any  one  of  them  should  drop  out  or  be  impaired,  the  entire 
structure  would  fall  to  pieces  and  its  operations  cease  at 
once. 

§  148.  Adoption  of  Articles  of  Confederation. — Prior  to 
the  adoption  of  the  xVrticles  of  Confederation  by  any  of  the 
States  which  did  so,  the  delegates  met  in  a  somewhat  sponta- 
neous, or  voluntary,  manner  for  the  purpose  of  protecting  the 
common  interests  of  all  the  States  during  the  progress  of  the 
Revolution  by  a  central  government.  After  the  adoption 
by  eight  of  the  States  of  the  Articles  of  Confederation  in 
July,  1778,  and  until  they  were  adopted  by  the  State  of 
Maryland  in  March,  1781,  some  of  the  States  were  repre- 
sented under  the  original  voluntary  system  and  others  un- 
der the  Articles  of  Confederation.^  During  the  whole  period 
every  State  was  exercising  certain  powers,  which  might  be 
called  sovereign,  in  regard  to  matters  within  its  own  juris- 
diction, and  the  Continental  Congress  was  exercising  sov- 
ereign powers  of  the  highest  order  for  the  joint  benefit  of 
all  the  States  as  a  nation, 

§  149.  National  unity  and  State  independence.  —Those 
who  believe  in  the  nationality  of  the  United  States  have 


§148. 

^See  Curtis' Constitutional  His- 
tory of  tlie  United  States,  vol.  I, 
chap.  V,  for  history  of  Adoption  of 
Articles  of  Confederation.  On  p. 
8G  the  following  occurs. 

"The  last  clause  of  the  Articles 
of  (Joufedenition  directed  that  they 
should  be  submitted  to  the  legis- 
latures of  all  the  states  to  be  con- 
sidered; and  if  approved  of  by 
them,  they  were  advised  to  author- 
ize their  delejjjates  to  ratify  the  in- 
strument in  Congress;  upon  wiiich 
ratification  it  was  to  become  bind- 
ing and  conclusive.  On  the  20th 
of  June,  1778,  a  call  was  made  in 
Congress  for  the  report  of  the  dele- 
gations on  the  action  of  their  sev- 

17 


eral  states,  and  on  the  26th  of  the 
same  month  a  form  of  ratification 
was  adopted  for  signature.  On  the 
9th  of  July  the  ratification  was 
signed  by  the  delegates  of  eight 
states:  New  Hampshire,  Massa- 
chusetts, Rhode  Island,  Connecti- 
cut, New  York,  Pennsylvania,  Vir- 
ginia, and  South  Carolina.  North 
Carolina  ratified  the  Articles  on  the 
21st  of  July;  Georgia  on  the  24th; 
New  Jersey  on  the  26th  of  Novem- 
ber; Delaware  on  the  5th  of  May, 
1779;  Maryland  on  the  1st  of  March, 
1781.  On  the  2d  of  March,  1781, 
Congress  met  under  the  Confedera- 
tion." Curtis'  Constitutional  His- 
tory, vol.  I,  p.  8().  See  also  Elliot's 
Debates,  vol.  I,  p.  84. 

257 


§  149  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  V. 

largel}'"  based  their  theory  of  the  nationality  and  sovereignty 
of  the  Central  Government  on  the  fact  that  regardless  of  all 
paper  instruments  and  delegated  authorities,  the  moment  the 
colonies  threw  off  their  allegiance  to  Great  Britain  they  be- 
came, as  to  common  affairs,  a  united  nation  and  a  single  peo- 
ple, and  that  this  national  unity  was  so  complete  that  it  was 
vested  in  the  Central  Government  with  the  same  complete- 
ness as  the  sovereignty  over  local  affairs  remained  vested  in 
the  States.^ 
§  149. 

1  VON  HOLST. 

Professor  Von  Hoist,  who  declares  in  the  last  volume  of  his  Constitu- 
tional History  of  the  United  States  that  he  spent  twenty-four  years  in  the 
preparation  of  the  work,  and  who  is,  therefore,  certainly  so  far  as  ex- 
perience is  concerned,  qualified  to  express  an  opioion,  says  on  page  2  of 
volume  I:  "It  was  long  before  the  ill-will,  which  the  systematic  disre- 
gard by  parliament  of  the  rights  of  the  colonists  had  excited,  triumphed 
over  this  feeling.  Even  in  August  and  September,  1775,  that  is,  half  a 
year  after  the  battle  of  Lexington,  so  strong  was  the  Anglo-Saxon  spirit 
of  conservatism  and  loyally  among  the  colonists,  that  the  few  extremists 
who  dared  to  speak  of  a  violent  disruption  of  all  bonds  entailed  chas- 
tisement upon  themselves  and  were  universallj'  censured.  But  the  eyes 
of  the  colonists  had  been  for  some  time  so  far  opened  that  they  hoped  to 
make  an  impression  on  parliament  and  the  king  only  by  the  most  ener- 
getic measures.  They  considered  the  situation  serious  enough  to  war- 
rant and  demand  that  they  should  be  prepared  for  any  contingency. 
Both  of  these  things  could  evidently  be  accomplished  in  the  right  way 
and  with  the  requisite  energy,  only  on  condition  that  they  should  act 
with  their  united  strength. 

"The  difficulties  in  the  way  of  this,  however,  were  not  insignificant. 
The  thirteen  colonies  had  been  founded  in  very  different  times  and 
under  very  different  circumstances.  Their  whole  course  of  develop- 
ment, their  political  institutions,  their  religious  views  and  social  rela- 
tions, were  so  divergent,  the  one  from  the  other,  that  it  was  easy  to 
find  more  points  of  difference  between  them  than  of  similarity  and 
comparison.  Besides,  commercial  intercourse  between  the  distant  col- 
onies, in  consequence  of  the  great  extent  of  their  territory,  the  scanti- 
ness of  the  population,  and  the  poor  means  of  transportation  at  the 
time,  was  so  slight  that  the  similarity  of  thought  and  feeling,  which 
can  be  the  result  only  of  a  constant  and  thriving  trade,  was  wanting. 

"The  solidarity  of  interests,  and  what  was  of  greater  importance  at 
the  time,  the  clear  perception  that  a  solidarity  of  interests  existed,  was 
therefore  based  mainly  on  the  geographical  situation  of  the  colonies. 
Separated  by  the  ocean,  not  only  from  the  mother  country,  but  from 
the  rest  of  the  civilized  world,  and  placed  upon  a  continent  of  yet 
unmeasured  bounds,  on  which  nature  had  lavished  every  gift,  it  was  im- 
possible that  the  thought  should  not  come  to  them,  that  they  were,  in- 

258 


CH.  v.]     TREATIES  OF  THE  CONFEDERATION.       §  150 

§  150.  Treaty-making  power  assumed  by  Congress  as  an 
attribute  of  sovereignty. — We  lind,  therefore,  that,  although 

deed,  called  upon  to  found  a  '  new  world.'  They  were  not  at  first  wholly 
conscious  of  this,  but  a  powerful  external  shock  made  it  soon  apparent 
tow  widely  and  deeply  this  thought  had  shot  its  roots.  They  could 
not  fail  to  have  confidence  in  their  own  strength.  Circumstances  had 
long  been  teaching  them  to  act  on  the  principle  '  Help  thyself.'  Be- 
sides, experience  had  shown  them,  long  years  before,  that — even  leaving 
the  repeated  attacks  on  their  rights  out  of  the  question — the  leading- 
strings  by  which  the  mother  country  sought  to  guide  their  steps  ob- 
structed rather  than  helped  their  development,  and  this  in  matters 
which  affected  all  the  colonies  alike. 

"Hence,  from  the  very  beginning,  they  considered  the  struggle  their 
common  cause.  And  even  if  tlie  usuipatious  of  ijarliament  made  them- 
selves felt  in  some  parts  of  the  country  much  more  severely  than  in 
others,  the  principle  involved  interested  all  to  an  equal  extent. 

"  Massachusetts  recommended,  in  1774,  the  coming  together  of  a  gen- 
eral congress,  and  on  September  4th,  of  the  same  year,  'the  delegates 
nominated  by  the  good  people  of  these  colonies,'  met  in  Philadelphia. 

"  Thus,  long  before  the  colonies  thought  of  separation  from  the  mother 
country,  there  was  formed  a  revolutionary  body,  which  virtually  exei'- 
cised  sovereign  power.  How  far  the  authority  of  this  first  congress 
extended,  according  to  the  instructions  of  the  delegates,  it  is  impossible 
to  determine  with  certainty  at  this  distance  of  time.  But  it  is  probable 
that  the  original  intention  was  that  it  should  consult  as  to  the  ways 
and  means  best  calculated  to  remove  the  grievances  and  to  guaranty 
the  rights  and  liberties  of  the  colonies,  and  should  propose  to  the  latter 
a  series  of  resolutions,  furthering  these  objects.  But  the  force  of  cir- 
cumstances at  the  time  compelled  it  to  act  and  order  immediately  and 
the  people,  by  a  consistent  following  of  its  orders,  approved  this  tran- 
scending of  their  written  instructions.  The  congress  was  therefore 
not  only  a  revolutionary  body  from  its  origin,  but  its  acts  assumed  a 
thoroughly  revolutionary  character.  The  people,  also,  by  recognizing 
its  authority,  placed  themselves  on  a  revolutionary  footing,  and  did  so 
not  as  belonging  to  the  several  colonies,  but  as  a  moral  person;  for  to 
the  extent  that  congress  assumed  power  to  itself  and  made  bold  to 
adopt  measures  national  in  their  nature,  to  that  extent  the  colonists 
declared  themselves  prepared  henceforth  to  constitute  one  people,  in- 
asmuch as  the  measures  taken  by  congress  could  be  translated  from 
words  into  deeds  only  with  the  consent  of  the  people.  ,  .  .  Each 
individual  colony  became  a  state  only  in  so  far  as  it  belonged  to  the 
United  States  and  in  so  far  as  its  population  constituted  a  part  of  the 
people.  The  thirteen  colonies  did  not,  as  thirteen  separate  and  mutu- 
ally independent  commonwealths,  enter  into  a  compact  to  sever  the 
bonds  which  connected  them  with  their  common  mother  country,  and 
at  the  same  time  to  proclaim  the  act  in  a  common  manifesto  to  the 
world;  but  the  'one  people'  of  the  united  colonies  dissolved  that  polit- 
ical connection  with  the  English  nation,  and  proclaimed  themselves 

259 


§  150  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  V. 

Congress  did  not  meet  under  the  Articles  of  Confederation 
until  March  2,  1781,  nearly  seven  years  after  it  was  first  or- 
ganized, and  up  to  that  time  possessed  no  treaty-making 
power  delegated  to  it  by  all  the  States,  it  had  already  con- 
cluded treaties  with  other  sovereign  powers  on  behalf  of  the 
States,  and  in  doing  so  had  exercised  one  of  the  highest  at- 
tributes of  sovereignty  in  a  manner,  and  with  results,  which 
would  have  been  wholly  illegal  and  inoperative  if  it  had  not 
possessed  the  highest  degree  of  sovereignty  as  to  matters  in 
which  all  of  the  thirteen  States  had  a  common  and  national 
interest.^  On  Februar}^  6,  1778,  Benjamin  Franklin,  Silas 
Deane  and  Arthur  Lee,  as  commissioners  representing  the 
thirteen  United  States  of  Korth  America,  concluded  two 
treaties  with  France,  one  of  amity  and  commerce^  and  the 

resolved,  henceforth,  to  constitute  the  one  perfectly  independent  peo- 
ple of  the  United  States.  The  Declaration  of  Independence  did  not 
create  tbirieen  sovereign  states,  but  the  representatives  of  the  people 
declared  that  the  former  English  colonies,  under  the  name  wliicli  they 
had  assumed  of  the  United  States  of  America,  became,  from  the  fourth 
day  of  July,  1776,  a  sovereign  state  and  a  member  of  the  family  of  na- 
tions, recognized  by  the  law  of  nations;  and  further,  that  the  people 
would  support  their  representatives  with  their  blood  and  treasure,  in 
their  endeavor  to  make  this  declaration  a  universally  recognized  fact. 
[Neither  congress  nor  the  people  relied  in  this  upon  any  positive  right 
belonging  either  to  the  individual  colonies  or  to  the  colonies  as  a  whole. 
Rather  did  the  Declaration  of  Independence  and  the  war  destroy  all 
existing  political  jural  relations,  and  seek  their  moral  justification  in 
the  right  of  revolution  inherent  in  every  people  in  extreme  emergen- 
cies." Von  Hoist's  Constitutional  History  of  the  United  States,  vol.  1, 
pp.  2-5,  6-7.  In  the  note  to  pages  2-5  he  refers  to  Story's  Commenta- 
ries, decisions  of  tlie  Supreme  Court  in  TFare  vs.  Hylton,  and  in  Clds- 
holm  vs.  Georgia,  Ramsey's  History  of  the  United  States  and  other  au- 
thorities cited  in  this  volume.  See  also  quotations  from  J.  C.  Bancroft 
Davis'  notes  to  Miller's  Lectures  on  the  Constitution  already  quoted  in 
§§  141  and  144  and  notes,  pp.  244  and  252,  ante. 


§  150. 

iThat  this  point  was  raised  at 
the  time  a])pears  by  the  statement 
in  Rives'  Life  and  Times  of  James 
Madison  quoted  in  note  under  §  1.53, 
p.  264,  post. 

2  Treaty  of  Amity  and  Commerce 
between  the  most  Christian  King 
and  the  thirteen  United  States  of 
North  America,  to  wit:  New  Hamp- 
shire,   Massachusetts   Bay,  Rhode 

260 


Island,  Connecticut,  New  York, 
New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  Geor- 
gia, concluded  at  Paris  February  6, 
1778;  ratified  by  the  Continental 
Congress  May  4,  1778;  ratifications 
exchanged  at  Paris  July  17,  1778. 
U.  S.  Treaties  and  Conventions, 
edition  1889,  p.  296;  8  U.  S.  St.  at 
L.  p.  12  (French  and  English  text). 


CH.  v.]  TREATIES  OF  THE  CONFEDERATION.  §  152 

other  of  alliance,^  both  of  which  were  ratified  b}^  the  Conti- 
nental Congress,  May  4, 1778,  and  thereupon  became  binding 
upon  all  the  States  of  the  Union  represented  by  the  Conti- 
nental Congress  and,  although  the  treaty  of  amity  and  com- 
merce related  in  some  respects  to  matters  wholly  within  the 
jurisdiction  of  the  separate  States,  the  Continental  Congress 
assumed  to  act  for  and  on  behalf  of  the  State  separately 
and  collectively,  and  no  question  ever  seems  to  have  been 
raised  as  to  its  authority  to  do  so. 

§  151.  Treaties  with  France  made  with  States  hy  name. 
— In  making  these  treaties  the  direct  power  of  the  Commis- 
sioners appointed  by  the  Continental  Congress  to  represent 
the  States  in  their  individual  capacity,  was  evidenced  by  the 
fact  that  the  treaties  themselves  recited  that  they  were  made 
between  "  the  most  Christian  King"  and  the  thirteen  United 
States  of  Noi'th  America,  enumerating  the  original  States 
by  name,^  and  the  treaty  itself,  therefore,  is  indisputable 
proof,  as  well  as  an  admission  of  the  fact,  that  the  Conti- 
nental Congress  possessed  the  treaty-making  power  even 
prior  to  the  adoption  of  the  Articles  of  Confederation  by 
all  of  the  States,  thus  further  demonstrating  the  proposi- 
tion that  in  all  confederations  the  power  of  negotiating  and 
establishing  relations  with  foreign  powers  necessarily  rests 
in  its  fullest  extent  with  the  central  government,  as  a  matter 
of  international  law  and  political  science  resting  upon  gen- 
eral principles,  and  not  upon  the  terms  of  any  express  dele- 
gation. 

§  152.  Principles  established  by  treaties  with  France. — 
The  principle  established  by  the  negotiation  and  ratification 
of  the  treaties  with  France  is  very  important ;  it  cannot  be 
brushed  lightly  aside  as  an  unauthorized  act  or  on  the  theory 
that  in  the  turmoil  and  confusion  of  revolutionary  times  an 
assumption  of  power  by  the  Continental  Congress  was  over- 
looked ;  for,  although  as  Justice  Story  says  in  the  quotation 

*  Treaty  of  Alliance  between 
the  Most  Christian  King  and  the 
United  States  of  North  Amer- 
ica, to  wit:  etc.  (same  as  above) 
concluded  at  Paris  February  6, 
1778;  ratified  by  the  Continental 
Congress    May    4,     1778;    ratifica- 


tions exchanged  at  Paris  July  17, 
1778.  U.  S.  Treaties  and  Conven- 
tions, edition  1889,  p.  307;  8  U.  S. 
St.  at  L.  p.  6  (French  and  English 
text). 

§161. 

1  See  footnote  to  §  150,  ante. 

261 


§  153  TREATY-MAKING  POWER  OP  THE  U.  S.  [CH.  V 

hereafter  included  in  this  chapter,  inter  arma  silent  leges^^ 
the  question  of  maintaining  the  rights  of  every  State  was 
foremost  in  the  minds  of  all  who  were  interested  in  the  lo- 
cal governments  of  the  States  as  well  as  in  the  federal  or 
national  government.  Yattel,  Montesquieu,  Eousseau  and 
many  other  authorities  were  well  known,  and  had  been  dili- 
gently studied  b}''  the  framers  of  American  Constitutions, 
both  State  and  Federal.  Thomas  Jefferson  and  James  Mad- 
ison had  enriched  their  libraries  in  Virginia  by  the  importer 
tion  of  books  from  Paris ;  Samuel  Adams,  the  father  of  the 
Eevolution,  and  John  Adams,  as  well  as  James  Otis,  were 
thoroughly  versed  in  political  science,  and  all  the  proceed- 
ings of  the  Continental  Congress  were  watched  and  discussed 
in  every  town  from  Boston  to  Georgia,  so  that  no  act  could 
be  passed,  or  measure  enacted,  which  would  deprive  the 
States  of  any  of  those  rights  of  local  self-government  which 
they  held  as  sacred  as  the  great  principle  of  independence 
itself.^ 

§153.  Advantages  derived  by  all  States  under  treaties 
with  France. — The  treaty  of  commerce  with  France  also 
clearly  demonstrates  the  practical  side  of  the  question  under 
discussion.  Article  XI  contained  a  provision  which  inured 
to  the  benefit  of  all  the  citizens  of  the  American  States  by 
exempting  them  from  the  droit  d''auhaine,  a  tax  which  was 
a  burden  upon  all  foreigners  holding  property  in  France ;  ^  it 


§  152. 

1  See  §  162,  p.  282,  post. 

2  It  was  the  discussion  of  these 
points  that  resulted  in  the  action 


lar  duty,  under  what  name  soever. 
Thej'  may  by  testament,  donation  or 
otherwise,  dispose  of  their  goods, 
movable   and    immovable,    in   fa- 


of  Virginia  in  regard  to  the  French    vour  of  such  persons  as  to  them 


treaties  referred  to  in  note  2,  to 
§  153,  p.  264,  post. 

§153. 

iThe  full  text  of  Article  XI  is  as 
follows: 

"  ARTICLE  XI. 

"The  subjects  and  inhabitants 


shall  seem  good,  and  their  heirs, 
subjects  of  the  said  United  States, 
residing  whether  in  France  or  else- 
where, may  succeed  them  ah  in- 
testat,  without  being  obliged  to 
obtain  letters  of  naturalization, 
and  without  having  the  effect  of 


of  the  said  United  States,  or  any  j  this  concession  contested  or  im- 
one  of  them,  shall  not  be  reputed  peded  under  pretext  of  any  rights 
aubains  in  France,  and  conse-  or  prerogative  of  provinces,  cities 
quently  shall  be  exempted  from  or  private  persons;  and  the  said 
the  droit  d'aiibaine,  or  other  simi- ;  heirs,  whether  such  by  particular 

262 


CH.  v.] 


TREATIES  OF  THE  CONFEDERATION. 


§153 


is  a  notable  fact,  therefore,  and  one  always  to  be  remem- 
bered especially  by  those  who  are  jealous  of  States'  rights 
that  one  of  the  first  results  of  the  exercise  of  its  treaty-mak- 
ing power,  as  an  attribute  of  sovereignty  by  the  Central 
Government  of  the  United  States,  was  to  obtain  a  substan- 
tial benefit  for  the  people  of  every  State,  and  one  which  they 
could  not  have  obtained  in  any  other  manner ;  and  also  that 
this  benefit  was  obtained  by  simply  giving  a  corresponding 


title,  or  ab  intestat,  shall  be  ex- 
empt from  all  duty  called  droit  de- 
traction, or  other  duty  of  the 
same  kind,  saving  nevertheless  the 
local  rights  or  duties  as  much  and 
as  long  as  similar  ones  are  not  es- 
tablished by  the  United  States,  or 
any  of  them.  The  subjects  of  the 
most  Christian  King  shall  enjoy  on 
their  part,  in  all  the  dominions  of 
the  said  States,  an  entire  and  per- 
fect reciprocity  relative  to  the  stip- 
ulations contained  in  the  present 
article,  but  it  is  at  the  same  time 
agreed  that  its  contents  shall  not 
affect  the  laws  made,  or  that  may 
be  made  hereafter  in  France  against 
emigrations  v/hich  shall  remain  in 
all  their  force  and  vigour,  and  the 
United  States  on  their  part,  or  any 
of  them,  shall  be  at  liberty  to  en- 
act such  laws,  relative  to  that  mat- 
ter as  to  them  shall  seem  proper." 
U.  S.  Treaties  and  Conventions, 
edition  1889,  p.  299. 

"The  droit  d^aubaine,  a  right 
claimed  by  most  sovereigns  of  that 
time  to  confiscate  to  their  own  use 
the  succession  of  an  unnaturalized 
foreigner  dying  within  tlieir  do- 
minions, and  which  Montesquieu 
styled  'an  absurd  right,'  Congress, 
in  its  plan  for  a  treaty,  asked  the 
king  of  France  to  abandon.  Arti- 
cle II  of  the  Treaty  of  Commerce 
of  1778,  as  negotiated,  complied 
■with  this  request,  but  accompanied 
it  with  a  declaration  that  French- 


men should  '  enjoy  on  their  part, 
in  all  the  dominions  of  the  said 
States,  an  entire  and  perfect  re- 
ciprocity relative  to  the  stipula- 
tions contained  in  the  present  ar- 
ticle.' The  treaty  of  1782  with  the 
Netherlands  (Art.  VI)  gave,  in  the 
place  of  this  abandonment,  the 
right  to  the  Dutch  foreigner  resid- 
ing in  the  United  States,  to  dis- 
pose of  his  property  there  by  testa- 
ment, donation  or  otherwise;  the 
right  to  receive  the  succession  ab 
intestato,  in  case  there  was  no  will; 
and  the  right  for  a  guardian  or  tu- 
tor to  a  minor,  to  act  in  his  behalf 
in  receiving,  keeping,  and  alienat- 
ing his  property.  This  precedent 
was  followed  in  the  Treaty  of  1783 
with  Sweden  (Art.  VI),  and  in 
the  Treaty  of  1785  with  Prussia 
(Art.  X). 

"In  many  other  respects  these 
several  treaties,  made  before  the 
adoption  of  the  Constitution,  and 
largely  upon  the  suggestions  in  the 
plan  of  Congress  which  was  pro- 
mulgated before  the  Articles  of 
Confederation  were  adopted,  se- 
cured the  assent  of  the  contracting 
parties  to  important  principles, 
some  of  which  wei'e  not  then  uni- 
versally recognized  as  constituting 
part  of  the  public  law  which  could 
govern  the  intercourse  of  nations 
with  each  other."  Davis'  Notes 
to  Lecture  1,  Miller  on  the  Consti- 
tution, pp.  50-51. 

263 


§153 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  V. 


concession  in  return  therefor,  and  exempting  citizens  of 
France  from  similar  burdens,  if  anj'  er^^sted,  in  this  country  ; 
this  exemption  could  not  have  been  given  effectually  by  the 
States  themselves,  as  they  could  not  exercise  the  treaty- 
making  power.  At  the  outset,  therefore,  there  was  a  prac- 
tical exhibition  of  the  great  benefits  to  be  derived  from  vest- 
ing the  treaty-making  power  in  the  Central  Government  and 
admitting  it  to  have  as  far-reaching  an  extent  as  possible.^ 

detach  her  from  tlie  French  alliance, 
or  to  seduce  any  portion  of  her 
people  by  the  dangerous  and  delu- 
sive project  of  a  separate  arrange- 
ment with  the  enemy,  which  the 
terms  of  the  alliance  expressly  for- 
bade, determined  to  silence  at  once 
all  cavils  as  to  the  obligation  of  the 
treaty,  so  far  as  she  was  concerned, 
by  a  formal  ratification  of  it  by 
her  own  act  and  in  her  own  name. 
Accordingly,  on  the  2d  day  of  June, 
1779,  a  resolution  was  passed  by  the 
legislature,  nemine  contradicente, 
declaring  that  '  the  treaties  of  alli- 
ance and  commerce  between  His 
Most  Christian  Majesty  of  France 
on  the  one  part,  and  the  Congress 
of  the  United  States  of  America  on 
the  other  part,  ought  to  be  ratified 
and  confirmed,  so  far  as  in  the 
power  of  this  Com moh wealth,  and 
the  same  are  hereby  ratified,  con- 
firmed, and  declared  binding  on 
this  Commonwealth.'  The  gov- 
ernor was,  at  the  same  time,  re- 
quested'to  notify  the  Minister  of 
His  Most  Christian  Majesty,  resi- 
dent at  Philadelphia,  the  above 
ratification  under  the  Seal  of  the 
Commonwealth.'  (Journal  of 
House  of  Delegates,  May  Session, 
1779,  p.  32).  This  proceeding, — 
doubtless  an  irregularity  in  a  dip- 
lomatic and  political  sense, — stands 
redeemed  to  every  ingenuous  mind 
by  the  loyal  motives  of  national 
honor  and  inflexible  patriotism 
which  dictated  it."     History  of  the 


2  The  State  of  Virginia  took  a 
peculiar  but  effective  method  of 
endorsing  the  action  of  Congress 
in  ratifying  the  Treaties  with 
France.  It  can  best  be  described 
by  quoting  from  an  eminent  Virgin- 
ian an  account  of  the  proceedings. 
"The  day  after  Mr.  Jefferson's 
election,  a  resolution  of  an  un- 
usual and  anomalous  character 
was  adopted  by  the  legislature  of 
Virginia.  It  served,  however, 
to  evince  her  earnest  attachment 
to  the  common  cause,  and  a 
strong  determination  to  defeat  the 
machinations  of  its  adversaries, 
whether  foreign  or  domestic.  In 
the  insidious  efforts  made,  during 
the  last  year,  to  regain  for  England 
her  lost  American  empire,  it  was 
frequently  insinuated  bj^  the  royal 
commissioners  that  the  ratification 
of  the  French  alliance  by  Congress 
was  not  binding  upon  the  national 
faith,  as  the  articles  of  confedera- 
tion, which  gave  to  that  body  au- 
thority to  conclude  treaties  with 
foreign  powers,  had  not  received 
the  confirmation  of  nil  the  states, 
which  was  made  necessary  to  their 
validity.  Maryland  had  not  yet 
given  her  signature  to  them; 
whereby  the  cf»mpact  remained 
without/wZZ  binding  force  upon  any 
of  the  parties. 

"It  was  in  this  state  of  things 
that  Virginia,  with  the  view  of 
cutting  off  pernicious  intrigues, 
whether  from  within  or  without,  to 

264 


CH.  v.] 


TREATIES  OF  THE  CONFEDERATION. 


§154 


§  154.  Treaties  with  France  concluded  prior  to  final  rati- 
fication of  Articles  of  Confederation. — Although  the  Arti- 
cles of  Confederation  had  not  been  ratified  by  all  the  States 
when  the  treaties  with  France  were  concluded,  they  had  been 
framed  and  submitted  to  all  the  States  for  adoption  and  had 
been  ratified  by  souie  of  the  States ;  the  necessity  for  vesting 
the  treaty-making  power  in  the  Central  Government  had  been 
recognized  by  the  delegates  who  had  been  entrusted  with 
the  preparation  of  that  instrument ;  the  Articles  were  drawn 
in  the  full  spirit  of  State  sovereignty,  the  first  and  second 
articles  expressly  providing  that  each  State  should  retain  its 
sovereignty  and  continue  to  exercise  every  power  not  ex- 
pressly delegated  to  the  Congress;  the  necessity  of  not  only 
vesting  the  treaty-making  power  exclusively  in  the  Central 
Government,  but  also  of  excluding  the  separate  States  from 
any  participation  therein  was  evidenced  by  the  provisions  of 
Article  VI  under  which  the  States  surrendered  the  right  to 
send  or  receive  Ambassadors  or  to  enter  into  any  conferences, 
agreements  or  treaties  of  any  kind  with  any  other  power  or 
with  each  other  except  upon  the  consent  of  Congress.^ 


Life  and  Times  of  James  Madison 
by  William  C.  Rives,  Boston,  1850, 
vol.  1,  pp.  203-205. 

§154. 

1  Number  VI  of  the  Articles  of 
Confederation  was  as  follows: 

"  No  State,  without  the  consent 
of  the  United  States  in  Congress 
assembled,  shall  send  any  embassy 
to,  or  receive  any  embassy  from, 
or  enter  into  any  conference,  agree- 
ment, alliance  or  treaty  with  any 
king,  prince,  or  state;  nor  shall  any 
person  holding  any  oflice  of  profit  or 
trust  under  the  United  States,  or 
any  of  them,  accept  of  any  present, 
emolument,  office,  or  title  of  any 
kind  whatever  from  any  king, 
prince,  or  foreign  state;  nor  shall 
the  United  States  in  Congress  as- 
sembled, or  any  of  them,  grant  any 
title  of  nobility. 

"  No  two  or  more  states  shall  enter 


into  any  treaty,  confederation,  or 
alliance  whatever  between  tliem, 
without  the  consent  of  the  United 
States  in  Congress  assembled, 
specifying  accurately  the  purposes 
for  which  the  same  is  to  be  entered 
into,  and  how  long  it  shall  con- 
tinue. No  state  shall  lay  any  im- 
posts or  duties  which  may  interfere 
with  any  stipulations  in  treaties 
entered  into  by  the  United  States 
in  Congress  assembled,  with  any 
king,  prince,  or  state,  in  pursuance 
of  any  treaties  already  projiosed  by 
Congress  to  the  courts  of  France 
and  Spain.  .  .  ."  (Thoremain- 
der  of  this  section  restricts  the 
states  from  engaging  in  warfare, 
except  in  case  of  attack,  invasion, 
or  imminent  danger  not  admitting 
of  delay. ) 
The  first  clause  of  Number  IX 

265 


§150 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  V. 


§  155.  Great  extent  of  treaty-makiug  power  of  Congress 
fully  appreciated  by  States. — Congress  was  also  clothed 
AviLli  the  sole  and  exclusive  power  of  sending  and  receiving 
ambassadors,  and  of  entering  into  treaties  and  alliances,  v\ath 
the  exception  of  such  commercial  treaties  as  restrained  the 
States  from  imposing  similar  imposts  and  duties  on  foreigners 
as  were  imposed  on  their  own  people,  or  from  prohibiting  ex- 
ports and  imports ;  ^  this  reservation  of  customs  regulations 
to  the  States  was  one  of  the  chief  causes  for  the  ultimate  aban- 
donment of  the  Articles  of  Confederation  and  the  adoption 
of  the  Constitution  in  which  broader  powers  were  vested  in 
the  Central  Government,  as  to  the  regulation  of  commerce, 
and  no  limitations  were  expressly  placed  on  the  treaty-mak- 
ing power.  The  Articles  of  Confederation,  and  the  powers 
therein  contained  as  to  treaty-making,  were  ratified  by  some 
of  the  States,  after  full  notice  that  Congress  had  determined 
that  its  rights  under  the  treaty-making  power  extended  to 
internal  affairs  of  the  different  States  whenever  the  general 
good  of  the  Union  depended  upon  the  establishment  of 
mutual  and  reciprocal  agreements  with  foreign  powers ;  al- 
thouo'h  the  reofulation  of  their  domestic  affairs  had  been  re- 
served  to  the  States  by  the  Articles  of  Confederation,  the 
treaties  with  France  and  the  treaties  which  were  negotiated 
with  other  powers  by  Congress  under  the  Confederation, 
uniformly  asserted  the  nationality  of  the  Government  of 
the  United  States  not  only  as  to  its  dealings  with  foreign 
powers,  but  as  to  its  relations  with  the  several  States.^ 

§  156.  Other  treaties  made  toy  Congress.— Speaking  of 
other  treaties  made  by  Congress  under  the  general  powers 


of  the  Articles  of  Confederation 
contained  tlie  following  provision: 
"  The  United  States  in  Congress 
assembled  shall  have  the  sole  and 
exclusive  right  and  power  .  .  . 
of  sending  and  receiving  ambassa- 
dors; entering  into  treaties  and  al- 
liances, provided  that  no  treaty  of 
commerce  shall  be  made  whereby 
the  legislative  power  of  the  respec- 
tive States  shall  be  restrained  from 
imposing  such  imposts  and  duties 

266 


on  foreigners  as  their  own  people 
are  subjected  to,  or  from  prohibit- 
ing the  exportation  or  importation 
of  any  species  of  goods  or  com- 
modities whatsoever.  ..." 
§  155. 

1  See  notes  to  §  154,  p.  265,  ante. 

2  See  extracts  from  Miller's  Lec- 
tures on  the  Constitution,  already 
cited,  and  to  be  cited  under  the  next 
and  other  sections  of  this  chapter. 


CH.  v.]     TREATIES  OF  THE  CONFEDERATION.       §  156 

possessed  and  delegated  to  it,  Mr.  Davis  says,  in  the  same 
notes  from  which  we  have  previously  cited : 

"  The  favored  nation  clause  put  Prussia  on  the  best  foot- 
ing in  the  ports  of  Charleston,  Boston,  Philadelphia  and 
New  York,  no  matter  what  the  Legislatures  of  South  Caro- 
lina, Massachusetts,  Pennsylvania,  or  New  York  might  say. 
Aliens  were  permitted  to  hold  personal  property  and  dispose 
of  it  by  testament,  donation,  or  otherwise,  and  the  exaction 
of  State  dues  in  excess  of  those  exacted  from  citizens  of  the 
State  in  like  cases  were  forbidden.  The  right  was  secured 
to  aliens  to  frequent  the  coasts  of  each  and  all  the  States, 
and  to  reside  and  trade  there.  Kesident  aliens  were  assured 
against  State  legislation  to  prevent  the  exercise  of  liberty  of 
conscience  and  the  performance  of  religious  worship;  and 
when  dying,  they  were  guaranteed  the  right  of  decent  burial 
and  undisturbed  rest  for  their  bodies."  ^ 

From  1782  until  the  government  was  re-organized  under 
the  Constitution  in  1789,  the  Articles  of  Confederation  were 
the  sole  written  authority  for  congressional  action ;  during 
that  period  treaties  were  made  by  plenipotentiaries  appointed 
by  Congress  with  France,  Great  Britain,  The  Netherlands, 
Sweden  and  Morocco,  by  all  of  which  matters  otherwise 
wholly  within  State  jurisdiction  were  seriously  affected  ;2 
these  treaties  were  ratified  in  Congress  by  the  requisite 
number  of  States,  and,  as  was  afterwards  held  by  the  Su- 
preme Court,  modified  the  State  laws  wherever  they  con- 
flicted therewith,  without  any  further  action  by  the  States 
themselves,  and  were  paramount  to  the  adverse  legislation 
by  which  some  of  the  States  endeavored  to  defeat  the  object 
of  the  treaties.^  During  the  last  years,  of  the  Confederation 
the  question  of  the  paramountcy  of  treaties  was  discussed  in 
the  Congress,  and  John  Jay,  then  Secretary  of  Foreign 
Affairs,  submitted  an  elabor-ate  report  in  regard  thereto, 


§15G. 

1  Miller's  Lectures  on  the  Consti- 
tution; J.  C.  Bancroft  Davis'  Notes 
to  Lecture  I,  p.  53.  See  also  quo- 
tation from  Curtis'  Constitutional 


History  of  United  States  under 
§  IGO,  p.  280,  po.si. 

2  See  list  of  tliese  treaties  in  notes 
under  §  160,  p.  278,  post. 

''See  decisions  cited  in  chap.  XI, 
§§  324  et  neq.,  Vol.  II,  pp.  6,  et  seq. 

267 


§  157  TREATY-MAKING  PO^yER  OF  THE  U.  S.  [CH.  V. 

some  extracts  from  -which  are  quoted  in  the  notes  to  this 
section.* 
§  157.  Names  of  States  recited  in  preambles  of  treaties. 

— In  some  of  the  treaties  above  enumerated  the  recital  clauses 
contain  the  names  of  the  separate  States,  "with  the  statement 
that  the  Commissioners  represented  them ;  in  all  instances, 
however,  the  Commissioners  were  appointed  solely  by  the 
Continental  Congress,  and  in  no  instance  did  they  hold  their 
commissions  from  any  of  the  States;^  the  principle  was  thus 

§  157,  f  under  §  150,  p.  261,  ante,  and  §  160, 

^See  captions  of  treaties  in  notes  I  p.  278,  post. 

*  SECRETARY  JOHN  JAX'S  REPORT. 

The  report  of  John  Jay,  Secretary  of  Foreign  AiTairs  of  the  Confed- 
eration, is  dated  October  13,  1786.  It  occupies  pages  185  to  287  of  vol- 
ume IV  of  the  Secret  Journals  of  Congress  (edition  of  1821,  published 
under  resolutions  of  Congress,  March,  1818,  and  February,  1820). 

It  commeuces:  "The  secretary  of  the  United  States  for  the  depart- 
ment of  foreign  affairs,  to  whom  was  referred  a  letter  of  the  4th  March 
last,  from  the  honourable  John  Adams,  esquire,  together  with  the  pa- 
pers that  accompanied  it,  reports, 

"  That  as  the  subject  of  these  papers  and  of  this  report  appears  to 
your  secretary  in  a  very  important  point  of  light,  he  thinks  they  should 
be  so  incorporated  as  that  the  record  of  the  latter  in  this  office  may  al- 
ways exhibit  an  entire  and  complete  view  of  the  whole  business.  He 
therefore  reports,     .     .     ." 

Then  follows  a  Memorial  which  John  Adams,  who  was  then  Minister 
from  the  United  States  to  England,  had  presented  to  the  British  Minis- 
try, asking  for  the  evacuation  by  British  troops  of  the  western  forts  of 
the  United  States,  pursuant  to  the  treaty  of  peace,  and  the  answer  re- 
ceived by  Mr.  Adams,  in  which  exception  was  taken  to  the  failure  of 
the  United  States  to  comply  with  Article  IV  of  the  same  treaty,  which 
"stipulates,  that  creditors  on  either  side  shall  meet  with  no  lawful  im- 
pediment to  the  recovery  of  the  full  value  in  sterling  money,  of  all  bona 
fide  debts  heretofore  contracted.'" 

The  Minister  of  Foreign  Affairs  (Lord  Carmarthen)  concluded  his 
note  as  follows  (pp.  188-189): 

"The  little  attention  paid  to  the  fulfilling  this  engagement  on  the 
part  of  the  subjects  of  the  United  States  in  general,  and  the  direct 
breach  of  it  in  many  particular  instances,  have  already  reduced  many 
of  the  king's  subjects  to  the  utmost  degree  of  difficulty  and  distress; 
nor  have  their  applications  for  redress,  to  those  whose  situations  in 
America  naturally  pointed  them  out  as  the  guardians  of  publick  faith, 
been  as  yet  successful  in  obtaining  them  that  justice  to  which,  on  every 
principle  of  law  as  well  as  of  humanity,  they  were  clearly  and  indis- 
putably entitled. 

268 


CH.  v.]  TREATIES  OF  THE  CONFEDERATION.  §  157 

established  that  the  Central  Government  acted  as  the  agent 

"  The  engagements  entered  into  by  treaty  ought  to  be  mutual  and 
equally  binding  on  the  respective  contracting  parties.  It  would  therefore 
be  the  height  of  folly  as  well  as  injustice,  to  suppose  one  party  alone 
obliged  to  a  strict  observance  of  the  publick  faith,  while  the  other  might 
remain  free  to  deviate  from  its  own  engagements,  as  often  as  convenience 
might  render  such  deviation  necessary,  though  at  the  expense  of  its  own 
national  credit  and  importance. 

"  I  flatter  myself,  however,  sir,  that  justice  will  speedily  be  done  to 
British  creditors;  and  I  can  assm-e  you,  sir,  that  whenever  America 
shall  manifest  a  real  determination  to  fulfil  her  part  of  the  treaty, 
Great  Britain  will  not  hesitate  to  prove  her  sincerity  to  co-operate  in 
whatever  points  depend  upon  her  for  carrying  every  article  of  it  into 
real  and  complete  effect. 

"  The  enclosed  paper  contains  a  state  of  the  grievances  complained 
of  by  merchants  and  other  British  subjects  having  estates,  property 
and  debts  due  to  them  in  the  several  states  of  America.  I  am,  sir,  your 
most  obedient,  humble  servant,  Cakmarthen. 

"John  Adams,  Esq.,  etc." 

The  "  state  of  grievances  "  contained  in  Lord  Carmarthen's  note  was 
a  detailed  enumeration  of  acts  passed  by  the  legislatures  of  the  several 
States  interfering  with,  or  creating  impediments  to,  the  recovery  of 
debts;  laws  passed  by  Massachusetts,  New  York,  Pennsylvania,  Virginia, 
Maryland,  North  Carolina,  South  Carolina,  Georgia,  were  set  forth  in 
the  order  named  and  the  points  in  them  which  "  impeded  "  the  collec- 
tion of  debts  were  specified  in  detail  (pages  189-203). 

Continuing  his  report  the  secretary  says  (pages  20;?-20.'3): 

"  On  considering  the  before  recited  papers,  these  important  questions 
present  themselves: 

"1.  Whether  any  individual  state  has  a  right,  by  acts  of  their  own 
internal  legislature,  to  explain  and  decide  the  sense  and  Tueaning  in 
which  any  particular  article  of  a  national  treaty  shall  be  received  and 
understood  within  the  limits  of  that  state  ? 

"2.  Whether  any  and  which  of  the  acts  enumerated  in  the  list  of 
grievances  do  violate  the  treaty  of  peace  between  the  United  States  and 
Great  Britain  ? 

'•3.  In  case  they  or  any  of  them  should  be  found  to  violate  it,  what 
measures  should  be  adopted  in  relation  to  Great  Britain  ?     And 

"4.  What  measures  should  be  adopted  in  relation  to  the  state  or 
states  which  passed  the  exceptionable  acts  ? 

"Of  these  in  their  order;  and 

"  1.  Of  the  right  of  an  individual  state  to  enact  in  what  sense  a  na- 
tional treaty  sliall  be  understood  witliin  its  particular  limits. 

"Your  secretary  considers  tlie  thirteen  independent  sovereign  states 
as  having,  by  express  delegati(m  of  power,  formed  and  vested  in  Con- 
gress a  perfect  though  limited  sovereignty  for  the  general  and  national 
purposes  specified  in  the  confederation.  In  this  sovereignty  they  can- 
not severally  participate  (except  by  their  delegates)  or  have  concurrent 

269 


§  157  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  V. 

of  tlie  separate  States,  so  far  as  foreign  relations  were  con- 
jurisdiction;  for  the  ninth  article  of  the  confederation  most  expressly 
conveys  to  Congress  the  sole  and  exclunive  right  and  power  of  determin- 
ing on  war  and  peace,  and  of  entering  into  treaties  and  alliances,  etc. 

•'  When  therefore  a  treaty  is  constitutionally  made,  ratified  and  pub- 
lished by  Congress,  it  immediately  becomes  binding  on  the  whole  na- 
tion, and  superadded  to  tlie  laws  of  the  land,  without  the  intervention, 
C(msent  or  fiat  of  state  legislatures.  It  derives  its  obligation  from  its 
being  a  compact  between  the  sovereign  of  this,  and  the  sovereign  of 
auotlier  nation;  but  laws  or  statutes  derive  their  force  fi'om  being  acts 
of  a  legislature  competent  to  the  jjassingof  them.  Hence  it  is  clear,  that 
treaties  must  be  implicitly  received  and  observed  by  every  member  of 
the  nation;  for  as  state  legislatures  are  not  competent  to  the  making  of 
such  compacts  or  treaties,  so  neither  are  they  competent,  in  that  capac- 
ity, authoritatively  to  decide  on  or  ascertain  the  construction  and  sense 
of  them.  AVhen  doubts  arise  respecting  the  construction  of  state  laws, 
it  is  common  and  proper  for  the  state  legislatures  by  explanatory  or 
declaratory  acts  to  remove  those  doubts;  but  when  doubts  arise  respect- 
ing the  construction  of  a  treaty,  they  are  so  far  from  being  cognizable 
by  a  state  legislature,  that  Congress  itself  has  no  authority  to  settle  and 
determine  them.  For  as  the  legislature  only,  which  constitutionally 
passes  a  law,  has  power  to  revise  and  amend  it,  so  the  sovereigns  only, 
who  are  parties  to  the  treaty,  have  power  by  posterior  articles  and  mu- 
tual consent  to  correct  or  explain  it. 

"All  doubts,  in  cases  between  private  individuals,  respecting  the  mean- 
ing of  a  treaty,  like  all  doubts  respecting  the  meaning  of  a  law,  are  in 
the  first  instance  mere  judicial  questions;  and  are  to  be  heard  and  de- 
cided in  the  courts  of  justice  having  cognizance  of  the  causes  in  which 
they  arise,  and  whose  duty  it  is  to  determine  them  according  to  the  rules 
and  maxims  established  by  the  laws  of  nations  for  the  interpretation  of 
treaties. 

"If  this  reasoning  and  these  principles  be  right,  as  your  secretary 
thinks  they  are,  it  follows  of  consequence  that  no  individual  state  has 
a  right  by  legislative  acts  to  decide  and  point  out  the  sense  in  which 
their  particular  citizens  and  courts  shall  understand  this  or  that  article 
of  a  treaty.  A  contrary  doctrine  would  not  only  militate  against  the 
common  and  received  principles  and  ideas  relative  to  this  subject,  but 
would  prove  as  ridiculous  in  practice,  as  it  appears  irrational  in  theory; 
for  in  that  case,  the  same  article  of  the  same  treaty  maj^  by  law  mean 
one  thing  in  New  Hampshire,  another  in  New  York,  and  neither  the 
one  nor  the  other  in  Georgia. 

"It  would  be  foreign  to  the  object  of  this  report  to  inquire  how  far 
such  legislative  acts  are  valid  and  obligatory  even  within  the  limits  of 
the  state  passing  them.  Much  might  be  said  on  that  head;  certain, 
however,  it  is,  that  they  cannot  bind  either  of  the  contracting  sovereigns, 
and  consequently  cannot  bind  their  respective  nations. 

"  2.  Whether  any  and  which  of  the  acts  mentioned  in  the  list  of  griev- 
ances do  violate  the  treaty  with  Great  Britain?" 

270 


CH.  v.]  TREATIES  OF  THE  CONFEDERATION.  §  157 

cernecl,  thus  demonstrating  that,  wherever  sovereignty  does 

The  report  then  proceeds  to  discuss  the  effect  of  Articles  IV,  V  and 
VI  of  the  treaty.  The  relative  rights  of  the  Central  Government  and 
the  States  are  referred  to  on  pages  208-210  as  follows: 

"  But  admitting  that  the  United  States  had  a  right  to  extinguish,  re- 
mit or  confiscate  debts  due  from  their  citizens  to  British  subjects,  it 
still  remains  to  be  required  whether,  and  in  what  manner,  and  by  what 
acts  they  exercised  that  right?  For  if  they  did  not  exercise  this  right  at 
all,  then  it  will  follow  that  these  debts  were  neither  extinguished,  re- 
mitted nor  confiscated,  and  consequently,  that  the  article  cannot  be  con- 
sidered as  restoratory;  nothing  being  moi-e  clear  than  that  restoration 
always  implies  previous  deprivation. 

"Here  a  very  important  question  presents  itself,  viz.  Whether  the 
state  legislatures  can  derive  a  right,  from  the  existence  of  war  between 
their  sovereign  and  a  foreign  one,  to  extinguish,  remit  or  confiscate,  by 
their  acts,  debts  due  from  their  citizens  to  the  subjects  of  that  foreign 
sovereign? 

"  The  rights  to  make  war,  to  make  peace,  and  to  make  treaties,  apper- 
taining exclusively  to  the  national  sovereign,  that  is,  to  Congress,  your 
secretary  is  of  opinion  that  the  thirteen  state  legislatures  have  no  more 
authority  to  exercise  the  powers,  or  pass  acts  of  sovereignty  on  those 
points,  than  any  thirteen  individual  citizens.  To  execute  the  laws,  or 
exercise  the  rights  of  war  against  a  national  enemy,  belongs  only  to  the 
national  sovereign,  or  to  those  to  whom  the  national  sovereign  may  con- 
stitutionally delegate  such  authority.  So  that  whatever  right  each 
state,  individually  considered,  may  have  to  sequester  or  confiscate  the 
property  of  their  own  proper  citizens,  yet  with  respect  to  the  common 
enemy  of  the  nation,  they  can  separately  do  no  act  of  national  sover- 
eignty; for  surely  a  thirteenth  part  of  a  nation  can  with  no  propriety 
assume  a  power  of  doing  national  acts  proper  only  to  the  national  sov- 
ereign. However  recent  may  be  the  date  of  the  confederation,  yet  a 
union  founded  in  compact,  and  vesting  the  rights  of  war  and  peace  in 
Congress,  preceded  it;  and  your  secretary  is  exceedingly  mistaken  if 
there  ever  was  a  period  since  the  year  1775,  to  this  day,  when  either  of 
the  then  colonies,  now  states,  were  in  capacity  to  pass  state  laws  for 
sequestering  or  confiscating  the  debts  or  property  of  a  national  enemy. 
It  was  then,  and  afterwards,  by  virtue  of  national  commissions,  tiiat 
the  enemy's  property  on  the  sea  was  liable  to  be  captured  and  confis- 
cated; and  equal  authority  was  necessary  to  justify  the  confiscation  of 
their  property  found  on  the  land.  Whatever  state  acts  therefore  may 
have  been  passed  during  the  war,  exercising  riglits  accruing  to  the  sov- 
ereign from  the  laws  of  nations  respecting  war,  they  cannot,  in  the 
opinion  of  your  secretary,  be  obligatory  on  either  of  the  belligerent 
sovereigns,  and  consequently  not  on  any  of  their  respective  citizens  or 
subjects. 

"  Your  secretary  would  not  have  it  inferred  from  these  remarks,  that 
the  states  have  passed  general  laws  for  confiscating  British  debts  due 
from  their  citizens.     His  design  in  these  remarks  is  to  obviate  any  argu- 

271 


§  157  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  V. 

reside,  the  National  Government  exercises  it  for  all  the 

ments  tliat  might  be  drawn  from  certain  other  acts  less  general  and 
direct,  but  in  his  opinion  equally  improper,  such  for  instance  as  those 
whereby  certain  Briiish  subjects  were  declared  traitors,  and  whereby, 
as  a  consequence  of  treason,  the  debts  due  to  them  became  payable  to 
the  state  to  which  those  British  subjects  were  declared  to  be  traitors; 
for  such  laws,  however  absurd,  do  exist.  There  are  also  certain  other 
laws  authorizing  the  payment  of  debts  due  to  certain  individuals  to  be 
made  at  the  state  treasury  in  paper  money,"  etc.. 

The  report  then  takes  up  the  acts  of  the  state  legislatures  referred 
to  in  Lord  Carmarthen's  note;  pages  213-274  are  devoted  to  an  exami- 
nation of  many  acts  and  resolutions  with  the  opinion  of  the  Secretary  ex- 
pressed separately  as  to  each,  in  some  cases  to  the  effect  that  the  act  is  not 
a  violation  of  the  treaty,  and  in  other  cases  that  it  is;  on  pages  274-275, 
referring  to  an  exceedingly  drastic  act  of  the  New  York  legislature,  he 
says : 

"This  intemperate  act  was  passed  after  the  treaty  had  been  ratified 
by  both  nations,  and  most  clearly  violates  the  sixth  article  in  various 
respects  too  obvious  and  decided  to  require  enumeration  or  discussion. 
"  Your  secretary  has  reason  to  believe  that  there  are  some  other  acts 
not  particularized  in  the  list  of  grievances,  which,  on  being  compared 
with  the  treaty,  would  appear  in  some  respects  inconsistent  with  it; 
but  as  the  principles  applied  by  this  report  to  the  other  acts,  will  also 
apply  to  all  of  the  like  kind,  he  thinks  the  investigation  may  here  be 
concluded  with  propriety. 

"  From  the  aforegoing  review  of  the  several  acts  complained  of,  it  is 
manifest,  that  the  fourth  and  sixth  articles  of  the  treaty  have  been  vio- 
lated by  certain  of  them. 

"  The  next  inquiry  in  order  seems  to  be,  "Whether  these  violations 
can  be  justified  or  excused  by  any  prior  ones  on  the  part  of  Britain  ? 

"There  is  no  doubt  but  that  Britain  has  violated  the  seventh  article, 
which  provides  'that  his  Britannick  majesty  shall  with  all  convenient 
speed,  and  without  causing  any  destructicm,  or  carrying  away  any  ne- 
groes, or  other  property  of  the  American  inhabitants,  withdraw  all  his 
armies,  garrisons  and  fleets  from  the  said  United  States,  and  from  every 
post,  place  and  harbour  within  the  same.' 

"The  violations  of  this  article  alluded  to,  are  these,  viz. 
"  1.  That  on  the  evacuation  of  New  York,  negroes  belonging  to  Amer- 
ican inhabitants  were  carried  away. 

"  2.  That  his  Britannick  majesty's  garrisons  have  not  been  withdrawn 
from,  but  still  keep  possession  of  certain  posts  and  places  within  the 
United  States. 

"  With  respect  to  the  negroes,  it  may  be  proper  to  distinguish  them 
into  three  classes. 

"  1.  Such  as  in  the  course  of  the  war  were  captured  and  disposed  of  as 
booty  by  the  enemy. 

"2.  Such  as  remained  with  and  belonged  to  American  inhabitants 
within  the  British  lines. 

272 


CH.  v.]  TREATIES  OF  THE  CONFEDERATION.  §  157 

States  as  a  national  unit,  either  in  its  own  right,  or  as  agent 

"3.  Such  as,  confiding  in  proclamations  and  promises  of  freedom  and 
protecliim,  fled  from  tlieir  masters  witliout,  and  were  received  and  pro- 
tected witliiu,  the  British  ciimps  and  lines. 

"Tlie  stipulation,  '  not  to  carry  away  any  negroes  or  other  property 
of  the  American  inliabitauts,'  cannot  in  the  opinion  of  your  secretary 
be  construed  to  extend  to,  and  compreliend  the  first  class.  By  the  laws 
of  war  all  goods  and  chattels  captured  and  made  booty  ^a.7rau(e  bello, 
become  the  property  of  the  captors.  Whether  men  can  be  so  degraded 
as  under  any  circumstances  to  be  with  propriety  denominated  goods 
and  chattels,  and  under  that  idea  capable  of  becoming  booty,  is  a  ques- 
tion on  which  opinions  are  unfortunately  various,  even  in  countries 
professing  Christianity  and  respect  for  tlie  rights  of  mankind.  Certain 
it  is  that  our  laws  assert,  and  Britain  by  this  article  as  well  as  by  her 
practice  admits,  that  man  may  have  propterty  in  man.  If  so,  it  is  fair 
reasoning  to  conclude  that  this  like  other  movable  property  is  capable 
of  changing  owners  by  capture  in  war.  The  article  places  '  negroes  and 
other  property  of  the  American  inhabitants'  on  the  same  footing;  so 
that  if  it  means  that  captured  negroes  shall  not  be  carried  away,  it  must 
also  mean  that  no  other  captured  property  shall  be  carried  aw:iy,  which 
would  in  other  words  amount  to  an  agreement  that  the  British  fleet  and 
army  should  leave  behind  all  the  booty  then  in  this  country,  which  they 
had  taken  from  American  inhabitants  at  any  period  of  the  war.  It 
would  be  a  task  beyond  the  abilities  of  your  secretary  to  raise  such  a 
construction  of  the  article  on  any  principles  capable  of  supporting  it." 

The  Secretary  then  shows  that  although  the  violations  of  Great  Britain 
were  continuous,  the  enforcement  of  the  state  laws  were  also  continuous 
and  after  saying  that  there  had  been  violations  of  the  treaty  justly  cliarge- 
able  to  both  parties  he  refers  to  the  legislative  acts  and  says  (pages  280 
-283): 

"  All  these  acts  were  in  force  on  and  long  after  the  day  of  the  date  of 
the  treaty,  viz.  3d  September,  1783. 

"In  whatever  light,  therefore,  deviations  from  the  treaty  prior  to  its 
final  conclusion  and  ratification  may  be  viewed,  it  is  certain  that  devia- 
tions on  our  part  preceded  any  on  tlie  part  of  Britain;  and  therefore  in- 
stead of  being  justified  by  them,  afforded  excuse  to  them. 

"  As  to  the  detention  of  our  posts,  your  secretary  thinks  that  Britain 
was  not  bound  to  surrender  them  until  we  had  ratified  the  treaty.  Con- 
gress ratified  it  14th  January,  1784,  and  Britain  on  the  9th  April  fol- 
lowing. From  that  time  to  tliis,  the  fourth  and  fifth  articles  of  the 
treaty  have  been  constantly  violated  on  our  part  by  legislative  acts  then 
and  still  existing  and  operating. 

"  Under  such  circumstances,  it  is  not  a  matter  of  surprise  to  your 
secretary  that  the  posts  are  detained;  nor  in  his  opinion  would  Britain 
be  to  blame  in  continuing  to  hold  them  until  America  shall  cease  to  im- 
pede her  enjoying  every  essential  right  secured  to  her,  and  her  people 
and  adherents,  by  the  treaty. 

"  Your  secretary  has  heard  another  reason  or  excuse  assigned  to  jus- 

18  273 


§  157  TREATY-MAKING  POWER  OP  THE  TJ.  S.  [CH.  V. 

for  all  the  States  collectively,  if  not  in  their  individual  ca- 
pacities. 

tify  deviating  from  the  fourth  article,  and  restraining  British  creditors 
in  the  recovery  of  their  debts,  viz.  that  by  giving  time  to  the  debtor,  he 
became  more  able  to  pay  the  debt;  and  as  that  additional  ability  was  a 
benefit  to  the  creditor,  the  latter  ought  not  to  complain  of  the  restraint 
which  produced  it. 

"Although  this  argument  maybe  somewhat  ingenious,  it  unfortu- 
nately proves  too  much.  By  the  treaty  a  British  creditor  has  a  right  to 
sue  when  he  pleases;  and  by  the  common  law  a  farmer  has  a  right  to 
plough  when  he  pleases,  a  merchant  to  send  out  his  vessels  when  he 
pleases,  and  every  man  to  eat  and  drink  when  he  pleases. 

"Admit  that  a  British  creditor  would  do  better  to  delay  his  suits, 
that  a  farmer  was  about  to  plough  in  an  improper  manner  or  season, 
that  a  merchant  had  ordered  his  vessels  to  sea  when  a  hurricane  was 
expected,  or  that  a  certain  gentleman  injured  his  health  by  intemper- 
ance; admit  these  facts;  would  it  thence  follow  that  every  or  any  good 
natured  officious  man,  who  might  think  himself  more  judicious  and 
prudent,  has  a  right  to  hinder  the  creditor  from  suing,  the  farmer  from 
ploughing,  the  merchant  from  despatching  his  vessels,  or  the  bonvivant 
from  indulging  his  appetite  ?    Surely  not. 

"  In  short,  as  your  secretary  is  uninformed  of  any  facts  or  matters  that 
can  justify  the  violations  on  our  part,  the  only  question  which  seems  to 
remain  to  be  considered  is.  What  is  to  be  done  ? 

"The  United  States  in  Congress  assembled  have  neither  committed, 
nor  approved,  of  any  violation  of  the  treaty.  To  their  conduct  no  ex- 
ceptions are  taken;  but  to  their  justice  an  appeal  is  made  relative  to  the 
conduct  of  particular  states.  The  United  States  must,  however,  eventu- 
ally answer  for  the  conduct  of  their  respective  members;  and  for  that, 
and  other  reasons  suggested  by  the  nature  of  their  sovereignty  and  the 
articles  of  confederation,  your  secretary  thinks  they  have  good  right  to 
insist  and  require  that  national  faith  and  national  treaties  be  kept  and 
observed  throughout  the  union;  for  otherwise  it  would  be  in  the  power 
of  a  particular  state,  by  injuries  and  infractions  of  treaties,  to  involve  the 
whole  confederacy  in  difiiculties  and  war. 

"In  his  opinion  it  would  highly  become  the  dignity  of  the  United 
States  to  act  on  such  occasions  with  the  most  scrupulous  regard  to  jus- 
tice and  candour  towards  the  injured  nation,  and  with  equal  moderation 
and  decision  towards  the  delinquent  state  or  states. 

"  In  the  present  case  he  thinks  it  would  be  proper  to  resolve, 

"  1.  That  the  legislatures  of  the  several  states  cannot  of  right  pass  any 
act  or  acts  for  interpreting,  explaining  or  construing  a  national  treaty, 
or  any  part  or  clause  of  it;  nor  for  restraining,  limiting  or  in  any  man- 
ner impeding,  retarding  or  counteracting  the  operation  or  execution  of 
the  same;  for  that  on  being  constitutionally  made,  ratified  and  pub- 
lished, they  become,  in  virtue  of  the  confederation,  part  of  the  law  of  the 
land,  and  are  not  only  independent  of  the  will  and  power  of  such  leg- 
islatures, but  also  binding  and  obligatory  on  them. 

274 


CH.  v.]  TREATIES  OF  THE  CONFEDERATION.  §  158 

§  158.  Treaty  of  peace  with  Great  Britain. — The  prelim- 
inary Articles  of  Peace  ^  concluded  between  the  United  States 

"  2.  That  all  such  acts  or  parts  of  acts  as  may  be  now  existing  in  either 
of  the  states,  repugnant  to  the  treaty  of  peace,  ought  to  be  forthwith  re- 
pealed ;  as  well  to  prevent  their  continuing  to  operate  as  violations  of  that 
treaty,  as  to  avoid  the  disagreeable  necessity  there  might  otherwise  be  of 
raising  and  discussing  questions  touching  their  validity  and  obligation. 

"3.  That  it  be  recommended  to  the  several  states,  to  make  such  re- 
peal rather  by  describing  tlian  reciting  the  said  acts;  and  for  that  pur- 
pose to  pass  an  act,  declaring  in  general  terms,  that  all  such  acts  and 
parts  of  acts  repugnant  to  the  treaty  of  peace  between  the  United  States 
and  his  Britannick  majesty,  or  any  article  thereof,  shall  be  and  thereby 
are  repealed;  and  that  the  courts  of  law  and  equity  in  all  causes  and 
questions  cognizable  by  them  respectively,  and  arising  from  or  touching 
the  said  treaty,  shall  decide  and  adjudge  according  to  the  true  intent 
and  meaning  of  the  same,  anything  in  the  said  acts  or  parts  of  acts  to 
the  contrary  thereof  in  any  wise  notwithstanding." 

The  Secretary  concludes  his  report  as  follows  (page  286-287): 

"Although  strict  justice  requires  that  they  who  have  wrongfully 
suffered  should  as  far  as  possible  receive  retribution  and  compensation, 
yet  as  it  would  be  very  difficult,  if  practicable,  to  prevail  on  the  states 
to  adopt  such  a  measure,  he  thinks  it  best  to  be  silent  about  it,  espe- 
cially as  the  United  States  have  neither  the  power  nor  the  means  of  doing 
it  without  their  concurrence. 

"Besides,  as  the  detention  of  the  posts  has  been  and  continues  in- 
jurious to  the  United  States,  the  consequences  of  their  respective  viola- 
tions may  be  set  against  each  other;  and  although  the  account  may  not 
be  exactly  balanced,  yet  it  cannot  be  well  expected  that  in  affairs  of 
such  magnitude,  the  same  regard  can  be  had  to  minutiae  as  in  transac- 
tions between  individuals. 

"  This  report  is  on  a  subject  no  less  new  and  singular  than  important. 
Your  secretary  is  not  conscious  of  any  errors  in  it;  and  yet  there  may 
be  some.  lie  hopes  the  facts  are  not  mistaken  or  misstated.  He  be- 
lieves his  reasoning  on  them  to  be  just;  and  he  flatters  himself  what- 
ever mistakes  relative  to  either  may  be  discovered,  that  they  will  be 
treated  with  candour,  and  ascribed  neither  to  want  of  atteutiim,  nor  of 
care,  but  to  that  fallibility,  from  which  few,  if  any,  even  of  the  wisest 
and  most  able,  are  wholly  exempt." 


§158. 

^  Provisional  Articles  agreed 
upon,  by  and  between  Richard  Os- 
wald, Esquire,  the  Commissioner  of 
his  Britannic  Majesty,  for  Treating 
of  Peace  with  the  Commissioners 
of  the  United  States  of  America,  in 
behalf  of  bis  said  Majesty  on  the 
one  part,  and  John  Adams,  Benja- 
min Franklin,  John  Jay  and  Henry 


Laurens,  four  of  the  Commissioners 
of  the  said  States  for  Treating 
of  Peace  with  the  Commissioner  of 
His  said  Majesty,  on  their  behalf, 
on  the  other  part.  To  be  inserted 
in,  and  to  constitute  the  Treaty  of 
Peace  proposed  to  be  concluded  be- 
tween the  Crown  of  Great  Britain 
and  the  said  United  States;  but 
which  Treaty  is  not  to  be  concluded 

275 


§158 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  V. 


and  Great  Britain,  September  3,  17S3,  which  afterwards  be- 
came the  Delinitive  Treaty  of  Peace,'^  was  the  first  treat}' 
which  was  made  dii-ectly  in  the  name  of  the  United  States, 
although  Article  I,  in  which  the  independence  of  the  States 
is  recognized,  enumerates  them  by  name.^  This  treaty  al- 
though made  under  the  Confedei-ation  was  subsequently  as- 
sumed (as  were  all  other  then  existing  treaties)  by  the  Con- 
stitution and  thus  became  the  supreme  law  of  the  land.  As 
such  it  was  the  basis  for  the  declaration  by  the  Supreme  Court, 
that  State  statutes  which  were  repugnant  to  treaty  stipula- 
tions were  absolutely  void,  pursuant  to  Article  VI  of  the  Con- 
stitution, that  all  treaties  made,  or  which  should  be  made, 
under  the  authority  of  the  United  States  should  be  binding 
upon  the  judges  of  all  the  courts,  anything  in  the  laws  or 
Constitution  of  any  of  the  States  to  the  contrary  notwith- 
standing.    Article  IV  of  both  treaties  provided  that  cred- 


until  terms  of  a  Peace  shall  be 
agreed  upon  between  Great  Britain 
aud  France  and  His  Britannic  Maj- 
esty shall  be  ready  to  conclude  such 
Treaty  accordingly.  Concluded  at 
Paris,  November  30,  1782.  Procla- 
mation ordered  by  the  Continental 
Congress,  April  11,  1783,  U.  S. 
Treaties  and  Conventions  edition, 
1889,  p.  370;  8  U.  S.  St.  at  L.  p.  54. 

2  Definitive  Treaty  of  Peace; 
concluded  September  3,  1783;  rati- 
fied by  the  Continental  Congress 
January  14,  1784;  proclaimed  Janu- 
ary 14,  1784;  U.  S.  Treaties  and 
Convention  edition,  1889,  p.  375;  8 
U.  S.  St.  at  L.  p.  80;  Compilation 
of  Treaties  in  Force,  1899,  p.  200. 

3  Articles  I  and  II  of  the  Provi- 
sional Articles  and  of  the  Defiuitive 
Treaty,  are  as  follows:  "His  Brit- 
annic Majesty  acknowledges  the 
said  United  States,  viz.  Xew  Hamp- 
shire, Massachusetts  Bay,  Khode 
Island,  and  Providence  Plantations, 
Connecticut,  Xew  York,  Xew  Jer- 
sey, Pennsylvania,  Delaware,  Mary- 
land, Virginia,  Xorth  Carolina, 
South  Carolina,  and  Georgia,  to  be 

276 


free,  sovereign  and  independent 
States ;  that  he  treats  with  them  as 
such,  and  for  himself,  his  heirs  and 
successors,  relinquishes  all  claims 
to  the  Government,  propriety  and 
territorial  rights  of  the  same,  and 
every  part  thereof. 

"  Article  II.  And  that  all  disputes 
which  might  arise  in  future,  on  the 
subject  of  the  boundaries  of  the 
said  United  States  may  be  pre- 
vented, it  is  hereby  agreed  and  de- 
clared, that  the  following  are,  and 
shall  be  the  boundaries,  viz :  "  ( The 
boundaries  then  follow  of  the  entire 
country  and  not  of  each  state  separ- 
ately; the  outside  boundaries  in- 
clude territory  in  what  was  then  the 
northwestern  corner  of  the  country, 
which  was  outside  of  the  bound- 
aries of  any  of  the  States  under  the 
most  extensive  claims  which  any 
one  of  them  could  put  forward.) 
U.  S.  Treaties  and  Conventions, 
edition,  1889,  pp.  375,  376;  8  U.  S. 
Stat,  at  L.  pp.  54-55  and  pp.  80-81; 
Compilation  of  Treaties  in  Force 
1899,  p.  200. 


CH.  v.] 


TREATIES  OF  THE  CONFEDERATION. 


§159 


itors  on  either  side  should  meet  with  no  lawful  impediment  to 
the  recovery  of  full  value  in  sterling  money  of  all  bona  fide 
debts  theretofore  contracted;^  in  the  great  case  of  Ware  v. 
Ilijlton,  which  will  be  referred  to  hereafter,  this  clause,  al- 
though in  conflict  with  confiscation  acts  of  various  States 
was  held  to  be  binding  upon  the  State  courts,  and  was  to  be 
considered  as  paramount  to  all  conflicting  State  laws  which 
were  pleaded  in  bar  by  American  debtors  in  actions  brought 
by  British  creditors  to  recover  confiscated  debts.^ 

§  159.  Special  provisions  of  Article  V.— Article  Y.  ^  stip- 
ulated that  Congress  should  earnestly  recommend  to  the  Leg- 
islatures of  the  several  States  to  provide  for  the  restitution 
of  all  confiscated  estates  belonging  to  British  subjects  and 
also  of  estates  and  property  of  persons  resident  in  the  dis- 


*  Article  IV,  as  quoted  in  footnote, 
is  identical  in  both  treaties,  so 
that  articles  referred  to  may  be  of 
either  treaty,  but  the  Definitive 
Treaty  is  generally  referred  to  as 
that  became  the  final  basis  of  the 
relations  between  the  United  States 
and  Great  Britain  after  January  14, 
1784.  Article  IV  is  quoted  at  length 
as  a  note  to  §  159. 

^  Vfare  vs.  Uylton,  U.  S.  Supreme 
Ct.  1796,  3  Dallas,  199,  and  see  full 
reference  to  this  and  other  cases 
involving  same  point  in  §§  324  et 
seq.  and  notes  Vol.  II.  pp.  6.  et  seq. 
§  159. 

1  Articles  IV.  and  V.  of  the  Pro- 
visional Articles,  and  of  the  Defini- 
tive Treaty  of  Peace  were  as  fol- 
lows: 

"  Article  IV.— It  is  agreed  that 
creditors  on  either  side  shall  meet 
with  no  lawful  impediment  to  the 
recovery  of  the  full  value  in  ster- 
ling money  of  all  bond  fide  debts 
heretofore  citntracted. 

"Article  V.— It  is  agreed  that 
the  Congress  shall  earnestly  recom- 
mend it  to  the  legislatures  of  the 
respective  States  to  provide  for 
the  restitution  of  all  estates,  rights 


and    properties   which   have   been 
confiscated,  belonging  to  real  Brit- 
ish subjects,  and  also  of  the  estates, 
rights   and    properties   of   persons 
resident  in  districts  in  the  posses- 
sion of   His  Majesty's  arms,  and 
who  have  not  borne  arms  against 
the  said  United  States:     And  that 
persons   of   any   other   description 
shall  have  free  liberty  to  go  to  any 
part  or  parts  of  any  of  the  thir- 
teen United  States,  and   therein  to 
remain  twelve  months,  unmolested 
in  their  endeavours  to  obtain  the 
restitution  of  such  of  their  estates, 
rights  and  properties  as  may  have 
been    confiscated:    And  that  Con- 
gress  shall   also  earnestly  recom- 
mend to  the  several  States  a  recon- 
sideration and  revision  of  all  acts 
or  laws  regarding  the  premises,  so 
as  to  render  the  said  laws  or  acts 
perfectly  consistent,  not  only  with 
justice  and  equity,   but  with  that 
spirit  of  conciliation  which,  on  the 
return  of   the   blessings   of   peace, 
should    universally    prevail:     And 
that  Congress  shall  also  earnestly 
recommend  to  the   several   States 
that  the  estates,  rights  and  proper- 
ties of  such  last-mentioned  persons, 
277 


§160 


TREATY-MAKING  POWER  OF  THE  T7.  S. 


[CH.  V. 


tricts  in  possession  of  His  ]\Iajesty 's  arms  who  had  not  borne 
ai-ms  arainst  the  United  States.  It  was  also  aii:reed  that  other 
legislation  consistent  with  justice  and  equity  and  the  spirit 
of  conciliation,  which  should  universally  prevail  on  the  re- 
turn of  the  blessings  of  peace,  should  be  recommended  earn- 
estly to  the  several  States.  This  clause  was  inserted  because 
at  that  time  some  of  the  States  which  had  confiscated  prop- 
erty were  in  actual  possession  and  ownership  of  the  same ;  as 
a  matter  of  fact,  however,  the  laws  regarding  confiscation  of 
property  referred  to  in  Article  V  are  no  more  within  the 
exclusive  province  of  State  legislation  than  were  the  laws 
affecting  the  rights  of  creditors  for  the  recovery  of  money, 
which  were  provided  for  by  the  absolute  stipulations  in  Ar- 
ticle IV.  It  would  have  been  equally  within  the  scope  of 
the  treaty-making  power  to  have  made  the  stipulations  as 
absolute  in  those  respects  as  in  the  others  had  the  commis- 
sioners plenipotentiary  seen  ht  to  do  so.^ 

§  160.  Other  treaties  made  by  Congress  under  confed- 
eration  again  referred  to. — In  1782  John  Adams,  on  behalf 
of  the  United  States,  concluded  a  treaty  of  amity  and  com- 
merce with  the  States-General  of  the  United  Netherlands, 
which  was  ratified  by  the  Continental  Congress,  January  23, 
1783,  and  which  contained  a  clause  regulating  testamentary 
provisions,  which  are  always  under  State  control,  so  far  as 
they  affect  property  within  the  State.^  He  also  negotiated 
another  treaty  relating  to  captured  vessels.'^ 


shall  be  restored  to  them,  they  re- 
funding to  any  persons  who  ma}' 
be  now  in  possession  the  bona  fide 
price  (where  any  has  been  given) 
which  such  persons  mny  have  paid 
on  purchasing  any  of  the  said 
lands,  rights  or  properties  since 
the  confiscation.  And  it  is  agreed, 
that  all  persons  who  have  any  in- 
terests in  confiscated  lands,  either 
by  debts,  marriage  settlements  or 
otherwise,  shall  meet  with  no  law- 
ful impedimeut  in  the  prosecution 
of  their  just  rights."  For  the 
broad  construction  placed  on  this 
2  For  note  2 

278 


recommendation  see  Mr.  Justice 
Washington's  charge  in  Gordon  vs. 
Kerr,  1  Wash.  C.  C.  322,  and  re- 
ferred to  in  §  354,  Vol.  II,  p.  46. 

-Note  266  et  seq.  post,  and  espe- 
cially Professor  Pomeroy's  views  as 
stated  in  §  270  post. 

§  160. 

1  Treaty  of  Amity  and  Commerce 
between  the  United  States  and  the 
States-General  of  the  United  Neth- 
erlands, concluded  at  The  Hague, 
October  8,  1782;  ratified  by  the 
Continental  Congress,  and  pro- 
claimed January  23,  1783.  United 
,  see  p.  279. 


CH.  v.]     TREATIES  OF  THE  CONFEDERATION. 


§160 


In  April,  1783,  Benjamin  Franklin  concluded  a  treaty  of 
amity  and  commerce  with  the  King  of  Sweden,  containing 
provisions  in  regard  to  the  disposition  of  property  similar 
to  those  in  the  treaty  with  France.^ 

In  1785  Benjamin  Franklin,  John  Adams  and  Thomas 
Jefferson  concluded  a  treaty  of  amity  and  commerce  with 
the  King  of  Prussia,  which  contained  provisions  for  the  dis- 
position of  personal  property  ;  *  this  treaty  is  remarkable  as 
containing  the  first  enunciation  of  the  policy  of  the  United 
States  that  private  and  unoffending  property  on  the  sea  should 
be  free  from  capture  during  war.^ 


States  Treaties  (ed.  1889),  p.  749; 
8  U.  S.  Stat,  at  L.  p.  32  (English 
and  Dutch  text). 

2  This  convention  was  concluded, 
ratified  and  proclaimed  at  the  same 
time.  United  States  Treaties  (ed. 
1889),  p.  759;  8  U.  S.  Stat,  at  L. 
p.  50  (English  and  Dutch  text). 

3  Treaty  of  Amity  and  Commerce, 
concluded  at  Paris,  April  3,  1783, 
between  the  King  of  Sweden  and 
the  thirteen  United  States  of 
America;  ratified  by  the  Conti- 
nental Congress  July  29,  1783, 
proclaimed  September  25,  1783, 
United  States  Treaties  (ed.  1889), 
p.  1042;  8  U.  S.  Stat,  at  L.  p.  60 
(English  and  French  text). 

*  Treaty  of  Amity  and  Commerce 
between  His  Majesty  the  King  of 
Prussia  and  the  United  States  of 
America;  (the  plenipotentiaries 
signed  separately  at  different  places 
and  at  different  dates  during  July, 
August,  September,  1785)  ratified 
by  the  Continental  Congress,  May 
17,  1786;  exchanged  at  The  Hague, 
October,  1786,  U.  S.  Treaties  and 
Conventions  (ed.  1889),  p.  899;  8 
U.  S.  Slat,  at  L.  p.  84  (English  and 
French  text). 

^  "  AKTICLE  XXIII. 

"  If  war  should  arise  between  the 
two  contracting  parties,  the  mer- 


chants of  either  country  then  re- 
siding in  the  other  shall  be  allowed 
to  remain  nine  months  to  collect 
their  debts  and  settle  their  affairs, 
and  may  depart  freely,  carrying  off 
all  their  effects  without  molesta- 
tion or  hindrance.  And  all  women 
and  children,  scholars  of  every 
faculty,  cultivators  of  the  earth, 
artizans,  manufacturers,  and  fisher- 
men, unarmed  and  inhabiting  un- 
fortified towns,  villages,  or  places, 
and  in  general  all  others  whose 
occupations  are  for  the  common 
subsistence  and  benefit  of  mankind, 
shall  be  allowed  to  continue  their 
respective  employments,  and  shall 
not  be  molested  in  their  persons, 
nor  shall  their  houses  or  goods  be 
burnt  or  otherwise  destroyed,  nor 
their  fields  wasted  by  the  armed 
force  of  the  enemy,  into  whose 
power  by  the  events  of  war  they 
may  happen  to  fall ;  but  if  anything 
is  necessary  to  be  taken  from  them 
for  the  use  of  such  armed  force, 
the  same  shall  be  paid  for  at  a  rea- 
sonable price.  And  all  merchant 
and  trading  vessels  employed  in 
exchanging  tlie  products  of  differ- 
ent places,  and  tiiereby  rendering 
the  necessaries,  conveniences,  and 
comforts  of  human  life  more  easy 
to  be  obtained,  and  more  gen- 
eral, shall  be  allowed  to  pass  free 

279 


160 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  V. 


In  1787  John  Adams  and  Thomas  Jefferson  concluded  a 
treaty  of  peace  and  friendship  with  the  Emperor  of  Morocco.® 

The  commercial  relations  of  the  United  States  in  1783  are 
summarized  by  Mr.  Curtis  in  the  quotation  in  the  notes  to 
this  section.''     It  does  not  appear  that  any  other  treaties  than 


and  unmolested;  and  neither  of 
the  contracting  Powers  shall  grant 
or  issue  any  commission  to  any 
private  armed  vessels,  empowering 
them  to  take  or  destroy  such  trad- 
ing vessels  or  interrupt  such  com- 
merce." 

For  the  author's  views  on  this 
subject  and  history  of  the  Ameri- 
can position  in  regard  thereto,  see 
document  on  Freedom  of  Private 
Property  on  the  Sea  from  Capture 
During  War,  prepared  for  the  State 
Department  by  Charles  Henry  But- 
ler, and  transmitted  to  the  Peace 
Conference  at  The  Hague,  during 
its  sessions  in  June,  1899. 

•^Treaty  of  Peace  and  Friendship 
between  the  United  States  and  the 
Emperor  of  Morocco,  concluded 
January,  1787;  ratified  by  the  Con- 
tinental Congress  July  18,  1787. 
United  States  Treaties  (ed.  1889), 
p.  724;  8  U.  S.  Stat,  at  L.  100. 

'"The  actual  commercial  rela- 
tions of  the  United  States  with 
other  countries,  when  the  peace 
took  place,  were  confined  to  trea- 
ties of  amity  and  commerce  with 
France,  Sweden,  and  the  Nether- 
lands; the  two  latter  transcending, 
in  some  degree,  tlie  powers  of  the 
Confederation.  In  1776  the  Rev- 
olutionary Congress  had  adopted  a 
plan  of  treaties  to  be  proposed  to 
France  and  Spain,  which  contem- 
plated that  the  subjects  of  each 
country  should  pay  no  duties  in  the 
other  except  such  as  were  paid  by 
natives,  and  should  have  the  same 
rights  and  privileges  as  natives  in 
respect  to    navigation    and    com- 

280 


nierce.  When  a  treaty  of  amity 
and  commerce  came  to  be  con- 
cluded with  France,  in  1778,  the 
footing  on  which  the  subjects  of  the 
two  countries  were  placed,  in  the 
dominions  of  each  other,  was  that 
of  the  most  favored  nations,  in- 
stead of  that  of  natives.  Tlie  Ar- 
ticles of  Confederation,  proposed 
in  1777,  and  finally  ratified  in 
March,  1781,  reserved  to  the  states 
the  right  of  levying  duties  and  im- 
posts, excepting  only  such  as  would 
interfere  with  any  treaties  that 
might  be  made  'pursuant  to  the 
treaties  proposed  to  France  and 
Spain.'  The  United  States  could, 
therefore,  constitutionally  com- 
plete these  two  treaties,  and  such 
as  were  dependent  upon  them,  but 
no  others  which  should  have  the 
effect  of  restraining  the  legislatures 
of  the  states  from  prohibiting  the 
exportation  or  importation  of  any 
species  of  goods  or  merchandise, 
or  laying  whatever  duties  or  im- 
posts they  thought  proper. 

"In  1782,  negotiations  were  en- 
tered into  for  a  similar  treaty  with 
the  States-General  of  the  Nether- 
lands. When  the  instructions  to 
Mr.  Adams  to  negotiate  this  treaty 
were  under  consideration  in  Con- 
gress, it  was  recollected  that  the 
French  treaty  contained  a  stipula- 
tion the  effect  of  which  would 
enable  the  heirs  of  the  subjects  of 
either  party,  dying  in  the  terri- 
tories of  the  other,  to  inherit  real 
property,  without  obtaining  letters 
of  naturalization.  The  doubt  sug- 
gested  itself — as   it  well   might — 


CH.  v.] 


TKEATIES  OF  THE  CONFEDERATION. 


§161 


those  above  enumerated  were  concluded  prior  to  the  adoption 
of  the  Constitution,  with  the  possible  exception  of  a  consular 
convention  with  France  and  some  agreements  with  Indian 
tribes.  In  regard  to  this  chiss  of  treaties,  it  is  proper  to  note, 
at  this  point,  although  it  will  be  the  subject  of  more  extended 
reference  in  a  subsequent  chapter,  that  treaties  made  by  the 
Centra]  Government  with  Indians  frequently  affected  prop- 
erty situated  wholly  within  a  single  State,  and  in  the  deci- 
sions hereafter  quoted  it  will  be  found  that  the  courts,  both 
State  and  Federal,  have  sustained  the  treaty-making  power 
(apart  from  the  constitutional  power  to  regulate  commerce 
with  Indians)  as  paramount  in  that  respect. 

§  161.  Other  sovereign  and  national  powers  exercised 
by  earlier  Congresses. — While  discussion  in  this  volume  is 
confined  to  the  treaty-making  power,  it  is  proper  to  note 
that  from  1Y74  to  1788  Continental  Congresses  exercised 
other  powers  which  are  analogous  to  the  treaty-making 
power,  in  that  they  are  inherent  attributes  of  sovereignty 
and  can  be  only  exercised  by  sovereign  and  national  powers. 
These  are  especially  referred  to  in  Mr.  Davis'  Notes  as  prize 


whetlier  such  an  indefinite  license 
to  aliens  to  possess  real  property 
within  the  United  States  was  not 
an  encroachment  upon  the  rights 
of  the  states.  It  seems  to  have 
been  expected,  when  the  French 
treaty  was  entered  into,  that  the 
states  would  acquiesce  in  this  pro- 
vision, on  account  of  tlie  peculiar 
relations  of  this  country  to  France, 
and  because  of  the  saving  clause  in 
the  Articles  of  Confederation  in 
favor  of  the  treaties  to  be  made 
with  that  power  and  with  Spain. 
But  such  a  stipulation  as  this  was 
clearly  not  within  the  meaning  of 
that  clause;  and  it  was  received 
with  great  repugnance  by  many  of 
the  states.  In  the  treaty  with  the 
Netherlands  it  was  proposed  to  in- 
sert a  similar  provision;  but  it  was 
found  to  be  extremely  improbable 
that  the  states  would  comply  with 
a  similar  engagement  with  another 


power.  The  language  was  there- 
fore varied,  so  as  to  give  the  privi- 
lege of  inheritance  only  as  to  the 
'effects'  of  persons  dying  in  the 
country — an  expression  which 
would  probably  exclude  real  prop- 
erty, but  which  might  possibly  be 
construed  to  include  it. 

"With  regard  to  duties  and  im- 
posts, the  Dutch  treaty  contained 
the  same  stipulation  as  the  French, 
putting  the  subjects  of  either 
power  on  the  footing  of  the  most 
favored  nations,  and  thereby  hold- 
ing out  to  the  subjects  of  the  United 
Provinces  tho  promise  of  an  equal- 
ity, under  the  laws  of  the  United 
States,  with  the  subjects  of  France. 
The  same  stipulation  was  inserted 
in  a  treaty  subsequently  made  at 
Paris  with  the  King  of  Sweden. 

"If  these  stii)ulations  were  sup- 
posed or  intended  to  be  binding 
upon  the  states,  so  as  to  restrain 

281 


§  162  TREATY-MAKING  POWER   OF  THE  U.  S.  [CH.  V. 


jurisdiction^  and  the  acquisition  of  territory-  —  bis  remarks 
on  these  points  are  worthy  of  careful  consideration. 

The  history  of  the  Confederation,  as  it  has  been  told  by 
Mr.  Justice  Story  in  his  Commentaries  and  by  George  Tick- 
nor  Curtis  and  Professor  Von  Hoist  in  their  histories  of  the 
Constitution,  also  demonstrates  the  existence  and  exercise  of 
all  of  the  attributes  of  nationality  and  sovereignty  which 
have  already  been  referred  to.^ 

§  162.  Views  of  Justice  Story. — In  this  respect,  Justice 
Story  bases  his  views  largely  upon  the  utterances  of  Chief 
Justice  Jay  and  of  Justices  Paterson  and  Chase  in  C/dshohn 
vs.  Georgia,^  all  of  w^hom  were  revolutionary  heroes,  and 
whose  knowledo^e  of  the  le^xal  status  of  the  Confederation 
was  based  upon  their  actual  experience  and  association  with 
public  affairs  during  its  existence  ;  the  author  of  this  volume 
feels  that  he  cannot  better  conclude  this  chapter  upon  the 
nature  of  the  treaty-making  power  under  the  Confederation 
than  by  quoting  at  length  the  concluding  sentences  of  Judge 
Story's  chapter  upon  the  general  status  and  powers  of  that 
government. 

"  In  respect  to  the  powers  of  the  Continental  Congress 
exercised  before  the  adoption  of  the  Articles  of  Confedera- 
tion, few  questions  were  judicially  discussed  during  the  Rev- 
olutionary contest ;  for  men  had  not  leisure  in  the  heat  of 
war  nicely  to  scrutinize  or  weigh  such  subjects ;  inter  anna 
silent  leges.  The  people,  relying  on  the  wisdom  and  patriot- 
ism of  Congress,  silently  acquiesced  in  whatever  authority 
they  assumed.  But  soon  after  the  organization  of  the  pres- 
ent government,  the  question  was  most  elaborately  discussed 


them  from  adopting,  witliin  their 
respective  jurisdictions,  any  other 
rule  than  that  fixed  by  the  French 
treaty,  for  the  subjects  of  the 
United  Provinces  and  the  King  of 
Sweden,  it  is  quite  clear  that  the 
Articles  of  Confederation  gave  no 
authority  to  Congress  to  make 
them.  They  could  have  no  effect, 
therefore,  in  producing  a  uni- 
formity of  regulation  throughout 
the  United  States  with  regard  to 
the   trade  with    Sweden  and  the 

282 


Netherlands."  Curtis'  Constitu- 
tional History  of  the  United  States, 
vol.  1,  pp.  188-190. 

§  161. 

^Millers  Lectures  on  the  Consti- 
tution; J.  C.  Bancroft  Davis'  Notes 
to  Lecture  I,  p.  37  et  seq. 

^Idem,  p.  57  et  seq. 

3  See  notes  to  §  142,  p.  245,  §  149, 
pp.  258,  et  seq.,  ante. 

§  162. 

1  See  note  to  §  143,  p.  246,  ante, 


CH.  v.]     TREATIES  OF  THE  CONFEDERATION. 


§  162 


before  the  Supreme  Court  of  the  United  States,  in  a  case 
calling  for  an  exposition  of  the  appellate  jurisdiction  of  Con- 
gress in  prize  causes  before  the  ratification  of  the  confedera- 
tion. The  result  of  that  examination  was,  as  the  opinions 
already  cited  indicate,  that  Congress,  before  the  confedera- 
tion, possessed,  by  the  consent  of  the  people  of  the  United 
States,  sovereign  and  supreme  powers  for  national  purposes ; 
and  among  others  the  supreme  powers  of  peace  and  war, 
and,  as  an  incident,  the  right  of  entertaining  appeals  in  the 
last  resort  in  prize  causes,  even  in  opposition  to  State  legisla- 
tion. And  that  the  actual  powers  exercised  by  Congress,  in 
respect  to  national  objects,  furnished  the  best  exposition  of 
its  constitutional  authority,  since  they  emanated  from  the 
representatives  of  the  people,  and  were  acquiesced  in  by  the 
people."  ~  While  this  volume  has  been  in  press  a  work  has 
been  published  by  an  eminent  authority  ^  on  the  diplomatic 
history  of  our  country  in  which  extended  references  are 
made  to  the  treaties  under  the  Confederation.^ 


which     also     contains    quotations 
from  Story's  Commentaries. 

2  Commentaries  on  tlie  Constitu- 
tution  of    the  United    States,   by 


Joseph  Story,  LL.  D.,  5th  Edition, 
Boston,  1891,  vol.  I.,  §217,  pp.  160- 
161. 


3  JOHN  W.  FOSTER  ON  TREATIES  OF  THE  CONFEDERATION. 

In  "  A  Century  of  American  Diplomacy  "  by  former  Secretary  of  State 
John  W.  Foster  (New  York  and  Boston,  1901),  the  author  devotes  sev- 
eral chapters  of  that  interesting  volume  to  the  diplomatic  results 
achieved  by  the  representatives  of  this  country  prior  to  the  adoption  of 
the  Constitution.  Chapter  I  (pp.  1-40),  "The  Revolutionary  Period," 
treats  of  the  condition  of  international  law  in  1776,  and  the  negotiations 
with  the  French  court  resulting  in  the  treaties  of  commerce  and  alli- 
ance of  1778;  chapter  II  (pp.  41-72),  is  devoted  to  the  negotiations  with 
Spain  and  Holland,  and  the  inception  of  the  peace  negotiations  with 
Great  Britain;  chapter  III  (pp.  7;}-102),  "Peace  under  tlie  Confedera- 
tion," gives  the  history  of  the  Provisional  Articles  of  1782  and  tlie  De- 
finitive Treaty  of  Peace  of  1783,  the  treaties  with  Prussia  and  other 
countries,  and  concludes  with  an  account  of  the  diplomatic  representa- 
tives of  our  country  during  the  Revolutionary  period  (for  Mr.  Foster's 
opinion  of  Benjamin  Franklin,  see  note  on  p.  298  of  this  volume,  post); 
chapter  IV  (pp.  104-135),  contains  a  history  of  the  organization  of  the 
Department  of  State. 

4  In  speaking  of  the  treaties  which  were  concluded  between  the  United 
States  and  foreign  powers  during  the  ante-Constitutional  period,  and  of 
the  high   attainments  of   the  American   statesmen  of  that  period  in 

283 


§  162  TREATY-MAKING  POWER  OP  THE  U.  S.  [CH.  V. 

international  law  and  diplomacy,  Mr.  Foster  says  (pp.  92-94):  "The 
year  following  the  peace  with  England,  John  Adams,  Franklin,  and 
Thomas  Jefferson  were  appointed  commissioners  to  negotiate  treaties 
of  commerce  with  various  European  governments,  and  the  convention 
witli  Prussia  of  17S5  was  the  outcome  of  this  appointment.  It  was 
mainly  the  work  of  Dr.  Franklin,  and  in  it  were  inserted  the  principles 
for  which  he  had  so  long  contended  as  to  neutrality,  privateering,  and 
the  exemption  of  private  property  on  the  sea  from  confiscation  in  war. 
It  was  called  '  a  beautiful  abstraclion; '  a  dream  of  the  philosopher  who 
vainly  sought  to  mitigate  the  cruelties  of  war;  and  when  the  treaty  came 
to  be  renewed  in  1799  these  provisions  were  omitted.  Franklin's  ef- 
forts, however,  have  not  been  entirely  in  vain.  In  the  Declaration  of 
Paris  of  1856,  adopted  by  the  great  powers  of  Europe,  privateering  was 
abolished;  and  when  the  adhesion  of  the  United  States  to  the  declara- 
tion was  asked,  Secretary  Marcy  proposed  as  an  amendment  that  private 
property  of  belligerents  at  sea  be  exempt  from  capture;  and  because  of 
the  refusal  of  the  powers  to  admit  that  principle,  the  adhesion  of  the 
United  States  was  withheld.  Our  country,  through  the  recent  action 
of  President  McKinley  in  asking  its  adoption  by  the  Hague  conference, 
is  on  record  as  still  advocating  Franklin's  liberal  principle.  The  treaty 
with- Prussia  has  the  unique  feature  of  having  been  signed  by  the  four 
signatory  parties  thereto  at  four  different  dates  and  at  three  differ- 
ent places;  the  instrument  being  signed  by  Mr.  Adams  in  London,  by 
the  Prussian  minister  at  the  Hague,  by  Dr.  Franklin  in  Paris,  July  9, 
and  by  Mr.  Jefferson,  July  28,  he  having  arrived  in  the  interim  in  that 
city  from  America. 

'■  Other  treaties  of  the  ante-Constitutional  period  were  those  with  Mo- 
rocco in  1787  and  the  Consular  Convention  of  1788  with  France.  It  is 
of  interest  to  note  the  part  which  the  Continental  Congress  played  in 
the  negotiation  of  all  the  treaties,  from  that  with  France  of  1788  up  to 
the  adoption  of  the  Constitution.  There  being  no  distinct  head  of  the 
government.  Congress  took  the  part  of  the  Executive  in  initiating  and 
directing  the  negotiations.  The  terras  of  all  treaties  to  be  made  were 
discussed  in  their  details;  and  in  almost  all  cases  the  draft  or  plan  was 
first  adopted  by  Congress,  before  being  sent  to  our  ministers  abroad  for 
negotiation  with  the  other  contracting  party.  Mention  has  already 
been  made  of  the  advanced  state  of  international  law  assumed  by  Amer- 
ican statesmen  as  indicated  in  the  French  treaty  of  commerce  of  1778, 
and  the  same  characteristic  marks  all  the  other  commercial  treaties — 
gieater  guarantees  and  privileges  to  commerce,  the  recognition  of  a 
genuine  neutrality,  an  effort  to  alleviate  the  horrors  of  war,  and  a  re- 
straint upon  its  distinctive  propensities.  That  the  old  nations  of  Europe 
were  willing  at  the  instance  of  this  infant  republic  to  consecrate  these 
advanced  principles  in  treaties  was  high  praise  for  the  statesmen  of  our 
Revolutionary  period.  Nor  is  all  the  credit  to  be  given  to  our  repre- 
sentatives abroad, — Franklin,  Adams,  Jay,  and  Jefferson.  A  share  of 
the  praise  is  due  likewise  to  the  controlling  members  of  the  Continental 
Congress." 

284 


CHAPTER  YI. 


PROCEEDINGS  OF  THE  CONSTITUTIONAL  CONVENTION  OF  1787 
RELATING  TO  TREATIES  AND  THE  TREATY-MAKING  POWER  OF 
THE  FEDERAL  GOVERNMENT. 


Section 

1(33 — Critical  period  of  American 
history. 

164 — Retrograde  from  unity. 

1G5 — Inability  of  Central  Govern- 
ment to  enforce  its  decrees. 

166 — Dangers  appreciated  by 
Washington  and  others. 

167 — Unity  impossible  without 
greater  power  in  Central 
Government. 

168 — Constitutional  Convention 
and  its  results. 

169 — Convention  a  unit  in  lodging 
treaty-maliing  power  in 
Central  Government. 

170 — Organization  of  Convention; 
Washington  chosen  Presi- 
dent. 

171 — Opening  business  of  Conven- 
tion, M:iy  25th;  Ran- 
dolph's resolutions,  May 
29th. 

172 — Pinckney's  plan;  treaties  to 
be  made  by  Senate;  May 
29th. 

173 — Pinckney's  plan  to  negative 
State      laws;       Madison's 
views;  June  8tb. 
174— Consideration      of      treaty- 
making  power;  June  13th. 
175 — Mr.  Paterson's  "New  Jersey" 
plan       submitted;      June 
14th. 
176 — Power  to  make  and  enforce 
treaties  a  practical  matter 
in  1787. 


Sectiox 

177 — Work  of  Convention  con- 
tinued; Alexander  Hamil- 
ton's views,  June  18th. 
Mr.  Madison's  views, 
June  19  th. 

178 — Mr.  Paterson's  views  con- 
trasted with  those  of  Mr. 
Madison  and  Mr.  Hamil- 
ton. 

179 — Mr.  King's  views  on  sover- 
eignty of  States. 

180 — Dangerous  differences  in 
Convention  on  other  sub- 
jects. Compromises 
reached. 

181 — Luther  Martin's  motion  in 
regard  to  treaties;  July 
17th. 

182 — Mr.  James  Wilson's  views 
on  treaties. 

183— Committee  of  Detail;  resolu- 
tions as  to  treaties;  July 
26th. 

184— First  draft  submitted;  trea- 
ties to  be  supreme  law; 
August  Gth. 

18.5 — Discussion  of  draft;  Colonel 
Mason's  view;  August 
15th. 

186 — Treaties  the  supreme  law; 
resolutions  regarding 

same;  August  23d. 

187 — Debate  as  to  ratification  of 
Treaties;  August  23d. 


285 


§  164  TREATY-MAKING  POWEK  OF  THE  U.  S.         [CH.  VI. 


Sectiox 

102 — Constitution  adopted,  Sep- 
tember 15th. 

193 — Constitution  signed;  Con- 
vention adjourns;  Sep- 
tember 17th. 

194 — What  the  records  of  the  Con- 
vention demonstrate. 

195 — Ratification  of  the  Constitu- 
tion by  the  people;  Madi- 
son's views. 

196 — Results  of  the  Convention; 
Washington's  meditation. 


Sectiox 

188 — Amendments  to  draft  as  to 
treaties;  August  iJoth. 

189 — Jurisdiction  of  Supreme 
Court  over  treaty  cases; 
Senate  to  ratify  treaties: 
September  4th-10th. 

190 — Committee  to  make  final 
draft;  President  to  make 
treaties;  September  10th 
and  12th. 

191 — Letter  to  Congress,  accom- 
panying Constitution  as  to 
ratification  by  the  people, 
instead  of  by  legislatures, 
of  the  States. 


§  163.   Critical  period  of  American  history. — The  six 

years  intervening  between  the  conclusion  in  1782,  of  the 
Provisional  Articles  which  were  afterwards  incorporated 
into  the  Definitive  Treaty  of  Peace  by  which  the  war  of  the 
Pevolution  was  terminated  and  Great  Britain  recognized 
the  independence  of  the  United  States/  and  the  adoption  of 
the  Constitution  in  1788,  has  been  fitly  described  by  one  of 
our  greatest  historians  as  the  critical  period  of  American 
history.^ 

§  164.  Retrograde  from  unity. — There  can  be  no  question 
that  after  the  independence  which  the  colonies  had  asserted 
bv  the  Declaration  of  Independence  in  1776  had  become  an 
accomplished  fact  in  1783,  and  the  States,  as  they  were  de- 
scribed in  the  Definitive  Treaty  of  Peace,  had  felt  their 
"sovereignty"  in  a  practical  manner,  there  was  an  apparent 
diminution  in  the  desire  for  unity  which  had  pla^^ed  such  an 
important  part  in  the  assertion  of  independence.  This  was 
the  natural  result  of  the  removal  of  the  chief  cause  which 
had  led  to  their  united  action ;  for,  after  they  had  achieved 
their  independence,  the  States  did  not  feel  the  pressing  need 
of  united  protection  against  a  common  foe ;  local  feelings, 
therefore,  revived,  and  the  great  powers  which  had  been  ex- 
ercised by  the  Continental  Congress  during  the  war  period 


§  163. 

iFor  dates  and  titles   of  these 
treaties  see  §  158,  note,  p.  275,  ante. 

286 


2  Professor  John  Fiske,  see  note 
under  next  section. 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§164 


were  not  only  more  closely  scrutinized,  but  each  State  desired 
to  extend  its  own  sovereignty  as  far  as  possible,  and  also  to 
limit  the  supervising  or  central  powers  of  the  Federal  Gov- 
ernment to  the  narrowest  possible  limits.^ 

One  of  the  evidences  of  the  lack  of  power  in  the  Central 
Government  of  the  Confederation  was  its  inability  to  enforce 
treaty  stipulations  which  it  had  entered  into  with  foreign 
powers,  especially  those  relating  to  the  collection  of  debts 
due  to  British  subjects.^  The  defiant  attitude  of  the  States  in 
disregarding  these  national  obligations  was  one  of  the  prime 
causes  which  led  to  strengthening  the  Central  Government 
and  placing  it  in  the  position  not  only  of  making,  but  also  of 
carrying  out  treaty  obligations.  The  unfortunate  results  of 
this  attitude  of  the  States  are  shown  by  the  extracts  from  the 
records  of  Congress  which  are  quoted  in  the  notes  to  this 
section.^ 


§164. 

1  Critical  Period  of  American  His- 
tory, by  Prof essor  John  Fiske;  His- 
tory of  the  People  of  the  United 


States,  by  Professor  John  Bach  Mc- 
Master,  vol.  I,  chaps.  Ill  and  IV. 
^See  §  156,  pp.  268,  et  seq.,  ante. 


^CONGEESS   OP  THE    COXFEDEKATION    AND   VIOLATIONS    BY    STATES    OF 
TREATY   STIPULATIONS. 

"  Eesolved,  that  the  legislatures  of  the  several  states  cannot  of  right 
pass  any  act  or  acts,  for  interpreting,  explaining,  or  constriiing  a  na- 
tional treaty  or  any  part  or  clause  of  it;  nor  for  restraining,  omitting 
or  in  any  manner  impeding,  retarding  or  counteracting  the  operation 
and  execution  of  the  same,  for  that,  on  being  constitntionaUy  made, 
ratified,  and  imblished,  they  become  in  virtue  of  the  confederation,  part 
of  the  law  of  the  land,  nnd  are  not  only  independent  of  the  will  and  power 
of  such  legislatures,  but  also  binding  and  obligatory  upon  them." 
Journals  of  Congress,  ed.  1801,  vol.  12,  p.  24,  March  21,  1787. 

On  the  previous  April  13th,  the  United  States,  in  Congress  assembled, 
unanimously  recommended  the  several  States  to  enact  identical  laws  of 
the  following  frame :  "  Whereas  certain  laws  or  statutes  made  and  passed 
in  some  of  the  United  States,  are  regarded  and  complained  of  as  repug- 
nant to  the  treaty  of  peace  with  Great  Britain,  by  reason  whereof  not 
only  the  good  faith  of  the  United  States  pledged  by  that  treaty,  has  been 
drawn  into  question,  but  their  essential  interests  under  that  treaty  greatly 
afCected.  And  whereas  justice  to  Great  Britain,  as  well  as  regard  to  the 
honor  and  interests  of  the  United  States,  require  that  the  said  treaty  be 
faithfully  executed,  and  that  all  obstacles  tliereto,  and  particularly  such 
as  do  or  may  be  construed  to  proceed  from  the  laws  of  this  state,  be  ef- 
fectually removed. 

"  Therefore, 

287 


§  165  TREATY-MAKING  POWER  OP  THE  U.  S.        [CH.  VI. 

§  105.  Inability  of  Central  Government  to  enforce  its 
decrees. — ^ Daring  this  period  it  was  demonstrated  that  the 
Central  Government  under  the  Articles  of  Confederation  was 
not  strong  enough  to  enforce  the  powers  which  had  been 
delegated  to  it,  and  wliich  it  possessed  ;  it  also  became  very 
evident  that  unless  it  were  clothed  with  greater  executive 
powei-  the  United  States,  as  a  Nation,  would  become  disin- 
tegrated, and  instead  of  remaining  a  single  strong  nation, 
Avould  be  separated  into  thirteen  insignificant  States;  theo- 
retically it  possessed  every  element  of  sovereignty,  but  prac- 
tically it  was  unable  to  exert  an}'  of  them.^ 

"Be  it  enacted  by  .  .  .  and  it  is  lieveby  enacted  by  the  authority 
of  the  same,  tliaL  such  of  the  acts  or  part  of  acts  of  the  legislature  of 
this  state,  as  are  repwinunt  Lo  the  treaty  of  peace  between  the  United 
States  and  his  Britannic  Majesty,  or  any  article  thereof,  shall  be,  and 
hereby  are,  repealed.  And  further,  that  the  courts  of  law  and  equity 
within  tills  state  be,  and  they  hereby  are  directed  and  required  in  all 
causes  and  questions  cognizable  by  them  respectively,  and  arising  from 
or  touching  the  said  treaty,  to  decide  and  adjudge  according  to  the  tenor, 
true  intent  and  meaning  of  tlie  same,  anythimj  in  tlie  said  acts,  or  parts 
of  acts,  to  the  contrary  thereof  in  amj  loise  notwithstanding.''''  Journals 
of  Congress,  ed.  1801,  vol.  12,  p.  35,  April  13,  1787.     .     .     . 

"  Such  a  general  law  would,  we  think,  be  preferable  to  one  that  should 
minutely  enumerate  the  acts  and  clauses  intended  to  be  repealed:  be- 
cause omissions  might  accidentally  be  made  in  the  enumeration,  or 
questions  might  arise,  and  perhaps  not  be  satisfactorily  determined, 
respecting  particular  acts  or  clauses,  about  which  contrary  opinions 
maybe  entertained.  By  repealing  in  general  terms  all  acts  and  clauses 
repugnant  to  the  treaty,  the  business  will  he  turned  over  to  its  proper  de- 
partment, viz  ,  tlie  judicial;  and  tlie  courts  (f  law  ivill  find'no  difficulty 
in  deciding  whether  any  particular  act  or  clause  is  or  is  not  contrary  to 
the  treaty."  Journals  of  Congress,  ed.  1801,  vol.  12,  p.  36,  April  13, 
1787. 

"When  the  framers  met  in  convention  the  violation  of  the  treaty  of 
peace  by  certain  of  the  states  was  one  of  the  most  pressing  anxieties 
of  the  political  situation  of  the  Union.  It  was  also  an  anxiety  most 
fruitful  of  results  in  developing  the  frame  of  the  constitution.  The 
treaty  of  peace  was  intimately  connected  with  the  origin  and  form  of 
paragraph  2,  article  VI."  Judicial  Power  and  Unconstitutional  Legis- 
lation, by  Brinton  Coxe,  pp.  274-276. 

An  interesting  history  of  the  condition  of  affairs  of  the  United  States 
as  they  were  affected  by  the  violations  of  treaties  and  the  unfortunate 
condition  of  foreign  relations  of  this  country  will  be  found  in  the  first 
chapter,  pp.  40-50,  of  vol.  1  of  Von  Hoist's  Constitutional  History  of 
the  United  States. 

1  For  note  1  see  p.  289. 

288 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§165 


The  prospects  were  discouraging  even  to  the  most  san- 
guine, and  were  bitterly  disappointing  to  those  who  having 
done  the  most  to  procure  the  independence  of  the  colonies, 
were  most  anxious  to  preserve  the  integrity  of  the  Union.- 

The  salvation  of  the  Republic,  and  the  continuance  of  the 
national  life  which  had  its  inception  at  the  first  meeting  of 
the  Constitutional  Congress,  which  was  born  with  the  Dec- 
laration of  Independence,  and  which  had  struggled  through 
its  infantile  period  under  the  protection  of  the  Articles  of 
Confederation,  was,  however,  now  to  be  assured  by  the  pa- 
triotic efforts  of  the  far-seeing  statesmen  who  had  thoroughly 
mastered  the  situation  and,  therefore,  were  able  to  diagnose 
the  conditions  and  to  prescribe  the  proper  remedies. 

The  fact  was  recognized  that,  although  national  life  ex- 
isted, there  was  not  sufficient  national  power  deposited  in, 


§  165. 

1  As  to  the  extent  of  power  of  the 
Congress  of  the  Confederation,  but 
inability  to  enforce  its  resolves,  see 
Davis'  notes  to  Miller's  Lectures 
on  the  Constitution,  p.  57,  and 
quoted  in  §  l-i4,  p.  252,  ante. 

2 "Another  and  a  severer  trial 
awaited  them.  They  were  not 
only  to  be  taught  ouce  more  that  a 
mere  federative  union  was  a  rope 
of  sand,  but  they  were  also  to  be 
taught  that  a  government  insti- 
tuted upon  this  principle  for  the 
purposes  of  a  war,  in  which  the 
separate  members  of  the  confed- 
eracy had  a  common  interest, 
would  not  answer  the  exigencies  of 
a  country  like  this  in  time  of  peace. 
They  were  to  learn,  by  a  trying  ex- 
perience, that  the  vast  concerns  of 
peace  are  far  more  complex  than 
the  coucerns  of  war;  that  there 
were  important  functions  of  gov- 
ernment to  be  dischaiged  upon 
this  continent,  which  only  national 
power  and  national  authority  can 
accomplish,  and  that  those  func- 
tions are  essential,  not  only  to  the 
prosperity   and  happiness  of  this 

19 


nation,  but  to  the  continued  exist- 
ence of  republican  liberty  within 
the  states  themselves.  They  were 
to  learn  this  through  a  state  of 
things  veiging upon  anarchy;  amid 
the  decay  of  public  virtue,  the  con- 
flict of  sectional  interests,  and  the 
almost  total  dissolution  of  the 
bands  by  which  society  is  held  to- 
gether, lu  this  state  of  things 
was  to  be  at  last  developed  the 
fundamental  idea  on  which  the 
Constitution  of  the  United  States 
now  rests — the  political  union  of 
the  people  of  the  United  States  for 
certain  limited  purposes,  as  dis- 
tinguished from  a  union  of  the 
states  of  which  they  are  citizens. 

"  We  have,  therefore,  now  reached 
the  first  stage  in  the  constitutional 
history  of  the  C(mntry.  What  has 
thus  far  been  stated  comes  to  a 
single  point,  the  earliest  great  illus- 
tration of  the  radical  defects  in  a 
purely  federative  union.  The  next 
stage  which  succeeds  presents  the 
second  illustration  of  this  impor- 
tant truth."  Curtis'  Constitutional 
History  of  the  United  States,  vol.  1, 
pp.  84-85. 

289 


§  167  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  VI. 

and  confided  to,  the  Central  Government,  to  make  it  strong 
and  healthy,  and  that  the  only  method  by  which  the  life 
and  strength  of  the  Union  could  be  preserved  was  by  a  fur- 
ther infusion  of  blood  from  the  constituent  elements  into 
the  main  body. 

§  IGC).  Daiii?ers  appreciated  by  Wasliingtoii  and  others. 
— Men  like  Washington,  Franklin,  Madison,  Hamilton,  Ran- 
dolph, Morris  and  others  were  far-seeing  enough  to  appreci- 
ate the  disasters  which  would  necessarily  follow  the  disin- 
tegration of  the  Union.  This  was  not  due  to  any  lack  of 
loyalty  to  their  native  states ;  they  were  too  sensible,  however, 
to  permit  local  pride  and  prejudice  to  hide  from  them  the 
inevitable  results  of  a  separation  of  the  States.  Each  knew 
that,  no  matter  how  strong^  he  mioht  consider  his  own  State 
as  compared  wath  other  States  in  North  America,  it  would,  by 
itself,  be  no  match  whatever  for  an}^  one  of  the  great  powers 
of  Europe ;  they  also  saw  that  the  individual  life  of  each  State 
could  only  be  preserved  in  the  same  manner  that  its  inde- 
pendence had  been  won, — by  a  continuance  of  the  united 
action  in  which  all  the  States  had  joined,  and  by  means  of 
which  Great  Britain  had  finally  been  forced  to  recognize  the 
independence  of  all  of  the  thirteen  States  at  one  time  by  the 
Definitive  Treaty  of  Peace.^ 

§  167.  Unity  impossible  without  greater  power  in  Cen- 
tral Government. — The  necessity  of  union  being  admitted, 
it  necessarily  followed  that  it  would  be  impossible  to  main- 
tain any  central  government  unless  the  essential  powers  of 
government  were  more  securely  vested  in  it  than  those  pow- 
ers were  vested  in  the  then  existing  Central  Government 
under  the  Articles  of  Confederation.  As  to  no  departments 
of  the  government  was  tliis  fact  more  clearly  realized  than 
it  was  as  to  the  reo:ulation  of  interstate  and  international 
relations;  when,  therefore,  the  Constitutional  Convention 
met  at  Philadelphia  in  1787,  the  great  questions  before 
it  were  how  the  powers  of  the  Central,  Federal  or  National 
Government  should  be  enlarged  and  extended,  and  not 
how  they  should  be  withdrawn  or  contracted ;  how  much 
more  power  would  the  States  surrender  to  the  Central  Gov- 

§  166.  I  stitutional   History  of  the  United 

1  See  Extract  from  Curtis'  Con- 1  States,  under  §  167  p.  291,  post. 
290 


CH. 


VI.] 


THE    FEDERAL    CONVENTION. 


§167 


eminent,  and  not  how  much  power  would  the  Central  Gov- 
ernment surrender  to  the  States ;  to  what  extent  should  the 
national  })owers  already  exercised  by  the  Central  Govern- 
ment under  the  Articles  of  Confederation  be  recognized  in 
regard  to  matters  which  are  purely  national  and  in  which  no 
particular  State  had  any  separate  interest,  and  not  how  should 
they  be  disavowed  or  exterminated ;  how  the  Central  Gov- 
ernment might  be  able  to  effectuall}^  enforce  its  inherent  and 
delegated  powers,  notwithstanding  the  opposition  of  the 
States,  and  not  how  the  States  might  be  able  to  prevent  the 
enforcement  of  those  powers.^ 


§167. 

1 "  We  are  now  approaching  the 
period  when  the  American  people 
began  to  perceive  that  something 
more  was  necessary  to  their  safety 
and  hapijiness  than  the  formation 
of  state  governments;  when  they 
found,  or  were  about  to  find,  that 
some  digested  system  of  national 
government  was  essential  to  the 
great  objects  for  which  they  were 
contending;  and  that,  for  the  for- 
mation of  such  a  government,  other 
arrangements  than  the  varying  in- 
structions of  different  colonies  or 
states  to  a  body  of  delegates  were 
^indispensable.  The  previous  illus- 
trations, drawn  from  the  civil'  and 
military  history  of  the  country, 
have  been  employed  to  show  the 
character  and  operation  of  the  rev- 
olutionary government,  the  end  of 
which  is  drawing  near.  For  we 
have  seen  that  the  great  purpose 
of  that  government  was  to  secure 
the  independence  of  each  of  these 
separate  communities  or  states 
from  the  crown  of  Great  Britain; 
that  it  was  instituted  by  political 
societies  having  no  direct  connec- 
tion with  each  other  except  the 
bond  of  a  common  danger  and  a 
common  object;  and  that  it  was 
formed  by  no  other  instrumentality, 
and  possessed  no  other  agency,  than 


a  single  body  of  delegates  as- 
sembled in  a  congress.  For  cer- 
tain great  purposes,  and  in  order 
to  accomplish  certain  objects  of 
common  interest,  a  union  of  the 
people  of  the  different  states  had 
indeed  taken  place,  bringing  them 
together  to  act  through  their  repre- 
sentatives; but  this  union  was  now 
failing,  from  the  want  of  definite 
powers;  from  the  unwillingness  of 
the  people  of  the  country  to  acqui- 
esce in  the  exercise  of  the  general 
revolutionary  powers  with  which  it 
was  impliedly  clothed ;  and  from  the 
want  of  suitable  civil  machinery. 
In  truth,  the  revolutionary  govern- 
ment was  breaking  down,  through 
its  inherent  defects,  and  the  i)e- 
culiar  infelicity  of  its  situation. 
Above  all,  it  was  breaking  down 
from  the  want  of  a  civil  executive 
to  take  the  lead  in  assuming  and 
exercising  the  powers  implied  from 
the  great  objects  for  which  it  was 
contending.  Its  legislative  author- 
ity, although  defined  in  no  written 
instruments  or  public  charters,  was 
snflKcieut,  under  its  implied  general 
powers,  to  have  enabled  it  to  issue 
decrees  directing  the  execution,  by 
its  own  agents,  of  all  measures  es- 
sential to  the  national  safety.  But 
this  authority  was  never  exercised, 
partly  because  the  states  were  un- 
291 


§168 


TREATY-MAKING  POWER  OF  THE  U,  S.         [CH.  VI. 


g  lOS.  Coustitutioual  Couventiou  and  its  results That 

these  questions  were  all  answered  by  the  Convention  m  such 
manner  that  every  improvement  and  every  change  was 
towards  the  enlargement,  and  not  toward  the  diminution, 
of  the  powers  of  the  National  Government  is  evidenced  by 
the  Constitution  of  the  United  States,  the  result  of  the  de- 
liberations of  the  Convention,  and  which  has  stood  the  test  of 
time  for  over  a  century  and  which,  in  the  words  of  that  great 
English  statesman,  William  E.  Gladstone,  was  "  the  greatest 
work  of  man  ever  ))roduced  at  a  given  time."  ^ 

It  is  beyond  the  scope  of  this  volume  to  enter  into  any 
complete  history  of  the  Constitutional  Convention,  although 
the  author  is  tempted  to  devote  more  space  than  can  fairly  be 
allotted  to  it,  for  no  subject  furnishes  more  interesting  mate- 
rial for  investigation,  discussion  or  historical  research  than 
the  proceedings  of  that  body  of  men,  all  able  and  distin- 
guished,'- and  who,  for  live  months,  sat  behind  closed  doors, 


willing  to  execute  it,  but  chiefly 
because  no  execiitlve  agency  ex- 
isted to  rej^iesent  the  continental 
power  and  enforce  its  decrees. 

"It  is  a  singular  circumstance 
that,  while  the  revolutionary  gov- 
ernment was  left  to  conduct  the 
great  affairs  of  the  continent 
through  the  mere  instrumentality 
of  a  congress  of  delegates,  and  was 
thus  failing  for  the  want  of  de- 
partments and  powers,  the  states 
were  engaged  in  applying  tiiose 
great  principles  in  the  organiza- 
tion and  construction  of  popular 
governments,  under  Avliich  they 
may  be  formed  with  rapidity  and 
ease,  and  which  are  capable  of  the 
most  varied  adaptation  to  the  cir- 
cumstances and  wants  of  a  free 
people."  Curtis's  Constitutional 
History  of  the  United  States,  vol.  1, 
pp.  70-80. 

"  Congress  assembled,  under  the 
Confederation,  on  the  2d  of  March, 
1781,  and  the  Treaty  of  Peace, 
which  put  an  end  to  the  war  and 

292 


admitted  the  independence  of  the 
United  States,  was  definitively 
signed  on  the  3d  of  Sejjtember, 
1783,  and  was  ratified  and  pro- 
claimed by  Congress  on  the  14th 
of  Januaiy,  1784."  Curtis's  Con- 
stitutional History  of  the  United 
States,  vol.  1,  p.  104. 

§168. 

1"  As  the  British  Constitution  is 
the  most  subtile  organism  which 
has  proceeded  from  progressive 
history,  so  the  American  Constitu- 
tion is  the  most  wonderful  work 
ever  struck  off  at  a  given  time  by 
the  brain  and  purpose  of  man." 
See  title  page  of  Bancroft's  History 
of  the  Constitution  of  the  United 
States,  vol.  1. 

2  In  chapter  XVI  of  the  first  vol- 
ume of  his  Constitutional  History, 
Mr.  George  Ticknor  Curtis  names 
George  Washington  of  Virginia, 
Alexander  Hamilton  of  New  York, 
James  Madison  of  Virginia,  Benja- 
min Franklin  of  Pennsylvania.  Gou- 
verneur  Morris,  then  of  Pennsylva/- 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§168 


and  finally  produced,  as  the  result  of  their  labors,  patience, 
skill,  ability,  and,  above  all,  patriotism,  the  Constitution  of 
the  United  States.^  In  this  volume  we  can  only  refer  to 
th()s3  proceedings  in  so  far  as  they  relate  to  the  treaty-making 
power ;  the  object  of  this  chapter  is  to  examine  the  proceed- 
ings and  note  the  gradual  evolution  of  Article  VI  bv  which 
treaties  are  made  the  supreme  law  of  the  land,  from  the 
form  in  which  it  first  appeared  until  the  perfected  form  in 
which  it  was  finally  incorporated  into  the  Constitution,  and 
adopted  as  a  part  of  the  fundamental  written  law  of  the 
United  States.  The  method  in  which  the  Convention  was 
called  and  the  status  of  the  delegates  is  the  subject  of  a  note 
to  this  section."* 


nia,  Rufus  King  of  Massachusetts, 
Charles    Cotes  worth   Pinckney   of 
South  Carolina,  and  Edmund  Ran- 
dolph of  Virginia  as  the  nine  per- 
sons who  were  the  most  important 
members  of  the  Constitutional  Con- 
vention, and  who  exercised  the  larg- 
est influence  upon  its  decision ;  after 
giving  an  account  of  the  life  and 
work  of  those  nine  persons  in  the 
same  order  as  they  are  mentioned 
above,  he  says  on   page  313,  that 
all  of  the  fifty-five  members  of  the 
Convention  were  able  and   distin- 
guished men;  in  regard  to  certain 
of  them  he  says  as  follows:  "But 
the  entire  list  embraced  other  men 
of  great  distinction  and  ability,  cel- 
ebrated, before  and  since  the  Con- 
vention, in  that  period  of  the  po- 
litical  history  of   America   which 
commenced   with    the    Revolution 
and  closed  with  the  eighteenth  cen- 
tury.    Such  were   Roger  Sherman 
of   Connecticut,  Robert   Morris  of 
Pennsylvania,   John   Dickinson   of 
Delaware,     John     Rutledge     and 
Charles  Pinckney  of   South   Caro- 
lina, and  George  Mason  of  Virginia. 
Of  the  rest,  all  were  men  of  note 
and   influence   in  their  respective 
states,    possessing   the    full   confi- 


dence  of   the   people   whom  they 
represented." 

3  Clause  2  of  article  VI  of  the  Con- 
stitution is  quoted  at  length  in 
§  6,  p.  7,  ante. 

*  Chapter  XV  of  vol,  I,  of  Cur- 
tis' Constitutional  History  of  the 
United  States,  pp.  221-256,  contains 
a  very  interesting  account  of  the 
origin  of  the  Federal  Convention. 

The  best  detailed  history,  how- 
ever, can  be  found  in  Volume  I 
of  Elliot's  Debates,  where  the  rec- 
ords are  collected.  Pages  108,  et 
seq.,  Volume  I,  contain  the  report 
of  the  States  on  the  Regulations 
of  Commerce;  there  is  also  on 
page  112  a  copy  of  a  letter  to  be 
sent  to  the  Legislatures  of  the  sev- 
eral States,  showing  the  principles 
on  which  the  alterations  enlarging 
the  powers  of  Congress  had  been 
proposed,  and  in  which  the  difficul- 
ties are  pointed  out  of  allowing  the 
differentStates  to  legislate  in  regard 
to  commerce  and  at  the  same  time 
of  preserving  treaty  relations  with 
foreign  countries.  On  page  114  is 
the  resolution  proposed  by  Mr. 
Madison,  in  the  House  of  Delegates 
of  Virginia,  and  the  proposition  of 
the  General  Assembly  of  Virginia, 

293 


§  169  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  VI. 


^  ir.O.  Convention  a  unit  in  lodging  treaty-making  power 
in  Central  (ilovernnienl. — The  proceedings  of  the  Conven- 
tion, as  they  have  been  preserved  by  Madison,  Yates  and 
Elliot,'  show  that  the  Convention  recognized  that  in  some  cases 


for  a  meetinjT  of  commissioners  of 
the  different  States  in  regard  to  the 
reguhition  of  commerce  by  the 
Central  Government.  A  meeting 
of  commissioners  took  place  Sep- 
tember 11,  187(5,  at  Annapolis;  New 
York,  New  Jersey,  Pennsylvania, 
Delaware,  and  Virginia  were  the 
only  States  represented.  (Elliot, 
vol.  I,  p.  110. )  The  commissioners 
prepared  a  report  which  they  sub- 
mitted to  their  own  legislatures, 
and  also  to  the  Congress  of  the 
United  States. 

On  February  21,  1787,  a  commit- 
tee in  Congress  passed  a  resolution 
as  follows  (Elliot,  vol.1,  p.  120): 

"  Whereas,  there  is  provision,  in 
the  Articles  of  Confederation  and 
Perpetual  Union,  for  making  alter- 
ations therein,  by  the  assent  of  a 
Congress  of  the  United  States,  and 
of  the  legislatures  of  the  several 
states;  and  whereas  experience 
hath  evinced  that  there  are  de- 
fects in  the  present  Confederation; 
as  a  mean  to  remedy  which,  sev- 
eral of  the  states,  and  particularly 
the  state  of  New  York,  by  express 
instructions  to  tlieir  delegates  in 
Congress,  have  suggested  a  conven- 
tion for  the  purposes  expressed  in 
the  following  resolution;  and  such 
convention  appearing  to  be  the 
most  probable  mean  of  establish- 
ing in  these  states  a  firm  national 
government, — 


"  Resolved,  That,  in  the  opinion  of 
Congi'ess,  it  is  expedient  that,  on 
the  seccmd  Monday  of  May  next,  a 
convention  of  delegates,  who  shall 
have  been  appointed  by  the  several 
states,  be  held  at  Philadelphia,  for 
the  sole  and  express  purpose  of  re- 
vising the  Articles  of  Confedera- 
tion, and  reporting  to  Congress 
and  the  several  legislatures  such 
alterations  and  provisions  therein 
as  shall,  when  agreed  to  in  Con- 
gress and  confirmed  by  the  states, 
render  the  federal  Constitution 
adequate  to  the  exigencies  of  gov- 
ernment and  the  preservation  of 
the  Union." 

When  the  Convention  met  it  was 
found  that  sixty-five  delegates  had 
been  appointed.  Of  these  ten  never 
attended;  thirty-nine  attended, 
took  part  in  the  debates,  and  signed 
the  Constitution;  sixteen  attended, 
and   did  not  sign. 

A  complete  list  of  the  delegates 
and  the  names  of  those  who  at- 
tended will  be  found  on  pages  124- 
125,  Elliot,  vol.  I.  Each  State 
adopted  its  own  form  for  the  cre- 
dentials of  its  delegates.  They  are 
printed  in  full,  pages  126-139,  El- 
liot, vol.  I. 

Bancroft,  McMaster,  Fiske,  and 
the  other  authorities  referred  to  in 
note  1,  §  169,  page  297,  po.it,  also 
have  interesting  accounts  of  the 
calling  of  this  Convention. 


§169. 

NOTE   ON   AUTHORITIES   ON  FEDERAL  AND  STATE  CONSTITUTIONAL  CON- 
VENTIONS. 

iThe  authorities  on  the  Federal  Convention  of  1787,  which  framed  the 
Constitution  of  the  United  States,  and  the  State  Conventions  to  which 
the  Constitution  was  submitted  for  ratification  are  limited  in  number; 

294 


CH.  VI.]       THE  FEDERAL  CONVENTION.  §  169 

the  power  of  the  Central  Government  must  be  widely  extended 
and  that  of  the  States  narrowly  restricted ;  this  was  pecu- 

for,  although  much  has  been  written  upon  the  subject  nearly  all  the 
commentators  and  historians  base  their  statements  upon  the  documents 
which  have  been  collected  and  published  by  direction  of  Congress.  The 
principal  sources  from  which  all  writers  on  Constitutional  history  have 
drawn  are  as  follows;  viz: 

ELLIOT'S   DEBATES. 

"  The  debates  in  the  several  State  Conventions,  on  the  adoption  of  the 
Federal  Constitution,  as  recommended  by  the  General  Couvention  at 
Philadelphia  in  1787.  Together  with  the  Journal  of  the  Federal  Conven- 
tion, Luther  Martin's  Letter,  Yates'  Minutes,  Congressional  Opinion, 
Virginia  and  Kentucky  Resolutions  of  1798-99  and  other  illustrations  of 
the  Constitution  in  five  volumes.  Collected  and  revised  from  contem- 
porary publications  by  Jonathan  Elliot,"  1st  edition,  1830;  2d  edition, 
18o6.     Republished  under  the  sanction  of  Congress,  Philadelphia,  1866. 

The  contents  of  the  five  volumes  are  as  follows: 

Volume  I  contains  the  Constitution,  Declaration  of  Independence, 
Articles  of  Confederation,  proceedings  prior  to,  and  which  led  to  the 
adoption  of  the  Federal  Constitution,  Proceedings  and  Journal  of  the 
Federal  Convention,  Dates  and  Forms  of  Ratifications  by  the  States, 
Amendments  to  the  Constitution,  Luther  Martin's  Letter,  Yates'  Minutes 
of  the  Convention,  and  certain  other  papers  expressive  of  views  of  indi- 
vidual members  of  the  Convention. 

Volume  II  contains  proceedings  of  the  State  Conventions  of  Massa- 
chusetts, Connecticut,  New  Hampshire,  New  York,  Pennsylvania  and 
Maryland. 

Volume  III  is  devoted  exclusively  to  the  proceedings  of  the  State 
Convention  of  Virginia. 

Volume  IV  contains  the  proceedings  of  the  State  Conventions  of 
North  Carolina  and  South  Carolina,  and  a  number  of  other  documents 
relating  to  the  construction  of  the  Constitution,  including  the  Virginia 
and  Kentucky  Resolutions,  Mr.  Madison's  letters  ou  Tariff  and  Banks, 
and  a  digest  of  decisions  of  the  courts  involving  Constitutional  Princi- 
ples. 

Volume  V  contains  the  Diary  kept  by  Mr.  Madison  of  the  debates  of 
the  Congress  of  the  Confederation  from  November,  1782,  to  April,  1787, 
and  which  are  known  as  the  Madison  Papers. 

THE    .JOURNALS    OF   CONGRESS. 

The  records  of  the  Congress  under  the  Confederation  are  not  as  com- 
plete as  the  records  of  Congress  since  the  adoption  of  the  Constitution. 
There  are,  however,  a  number  of  volumes  which  contain  valuable  data  as 
to  the  action  of  Congress  in  regard  to  the  Constitution  and  its  adoption. 
The  author  has  used  the  edition  published  in  1821  under  the  direction 
of  the  President  of  the  United  States  conformably  to  the  Resolution  of 
Congress  of  March  27,  1818,  and  April  21,  1820,  volume  IV.  of  which 

295 


§  169  TKEATY-.MAKIXG  rOWEll  OF  THE  U.  S.         [CH.  VI. 

liarly  the  case  in  regard  to  the  treat^^-makiiig-  power ;  in  fact, 
the  Convention  was  almost  a  unit  in  lodging  it  absolutely  and 
exclusively  in  the  Central  Government  without  an}^  express 

contains  some  valuable  data  in  regard  to  the  Constitution.  Other  edi- 
tions were  published  in  Philadelphia  in  1801,  and  in  Washington  in 
1823. 

THE  MADISON  PAPERS. 

"  The  papers  of  James  Madison,  purchased  by  order  of  Congress;  being 
his  Correspondence  and  Reports  of  Debates  during  the  Congress  of  the 
Confederation,  and  his  Keport  of  Debates  in  the  Federal  Convention, 
now  published  from  the  original  manuscripts,  deposited  in  the  Depart- 
ment of  State,  by  direction  of  the  Joint  Library  Committee  of  Congress, 
under  the  superintendence  of  Henry  D.  Gilpin;  "  three  volumes,  Wash- 
ington, 1840. 

Volume  I  contains  the  Debates  in  1776  on  the  Declaration  of  Inde- 
pendence, and  on  a  few  of  the  Articles  of  Confederation,  preserved  by 
Thomas  Jefferson;  Letters  of  Mr.  Madison  preceding  the  Debates  of 
1783. 

Volume  II  contains  the  Debates  of  Congress  of  the  Confederation 
from  February  19,  1787,  to  April  25, 1787,  Correspondence  of  Mr.  Madison 
during  and  subsequent  to  the  Debates  in  the  Congress  of  the  Confedera- 
tion, from  February  15,  1787,  to  December  2,  1788;  Debates  in  the  Fed- 
eral Convention  from  Monday,  May  14,  1787,  to  Monday,  Angust  6,  1787. 

Volume  III  contains  Debates  in  the  Federal  Convention  from  Tues- 
day August  7,  1787,  until  its  final  adjournment  Monday  September  17, 
1789,  and  notes  and  references  to  the  Journal  of  Conventions.  The  ref- 
erences in  the  subsequent  sections  of  this  chapter  are  all  made  to  the 
Madison  Papers  as  they  are  official;  the  citations,  however,  can  be  found 
in  Elliot's  Debates  and  other  editions  of  Madison's  Journal  by  reference 
to  the  dates. 

MADISON'S    JOURNAL. 

"  Journal  of  the  Federal  Convention  kept  by  James  Madison,  reprinted 
from  the  edition  of  1840,  which  was  published  under  direction  of  the 
United  States  Government  from  the  original  manuscrijjts  with  a  com- 
plete index;"  edited  by  E.  H.  Scott,  Chicago,  Albert  Scott  &  Co.,  1893; 
although  the  author  refers  in  tlie  notes  only  to  tlie  Madison  Papers  the 
citations  can  easily  be  found  in  this  editi(m  of  Madison's  Journal  by 
reference  to  the  dates,  which  are  given  in  all  ca.ses. 

YATES'    SECRET    PROCEEDINGS. 

"Secret  Proceedinjrs  and  Debates  of  the  Convention  assembled  at 
Philadelphia  in  the  year  1787,  for  the  purpose  of  forming  the  Constitu- 
tion of  the  United  States  of  America,  from  the  notes  taken  by  the  late 
Robert  Yates,  Esq.,  Chief  Justice  of  New  York,  and  copied  by  John 
Lansing,  Jun.  Esq.,  late  Chancellor  of  that  State,  members  of  that  Con- 
vention, (and  other  documents  enumerated,  relating  to  the  Constitu- 
tion)." Albany,  N.  Y..  1821. 
296 


OH.  VI.]        THE  FEDERAL  CONVENTION.  §  170 

limitation  whatever;  it  is  apparent  on  the  record  that  the 
delegates  unanimously  appreciated  the  important  bearing 
which  our  foreign  relations  had  upon  the  welfare  of  the 
country  even  at  that  early  period  in  American  history. 

§  170.  Orgauization  of  Coiiveution ;  Washington  chosen 
President. — The  iirst  business  of  the  Convention  was  to  or- 
ganize and  to  elect  a  President.  No  better  choice  could  have 
been  made  than  the  one  who  had  already  received  the  title  of 
"  Father  of  his  Country,"  and  to  whom  the  sentence,  "  First 
in  war,  first  in  peace,  first  in  the  hearts  of  his  countrymen," 
was  to  be  not  only  a  perpetual  but  an  appropriate  tribute  of  af- 
fection.^ It  was  fitting,  indeed,  that  the  man  who  had  led  the 
armies  of  the  united  Colonies,  through  a  war  which  had  re- 
sulted in  their  independence,  against  a  common  foe,  should 


Washington,  Henry  Lee  of  Virginia 
thus  described  him.  Madison's 
Papers,  vol.  II,  p.  722, 


§170. 

1  In  the  resohition  presented  to 
the  llouse  of  Representatives  on 
December  26,  1799,  on  the  death  of 

BANCKOFT,    CURTIS,    MCMASTER,    FISKE,  MEIGS. 

History  of  the  Foimation  of  the  Constitution  of  the  United  States  of 
America,by  George  Bancroft.    In  two  volumes.     6th  edition  New  York 
1893. 

Constitutional  History  of  the  United  States,  by  George  Ticknor  Cur- 
tis, two  volumes,  2d  edition;  volume  I,  Histoiy  of  the  Conventicm;  vol- 
ume II,  Subsequent  History  of  the  United  States  as  to  constitutional 
points. 

History  of  the  People  of  the  United  States  from  the  Revolution  to  the 
Civil  War,  by  John  Bach  McMaster.  In  five  volumes,  New  York,  1893, 
volume  1,  chapters  II  to  V,  inclusive,  relate  to  the  "breaking  up"  of 
the  Confederation  and  the  adoption  of  tlie  Constitution. 

The  Critical  Period  of  American  History,  1783-1789,  by  John  Fiske, 
Boston  and  New  York,  1888,  1899. 

"The  Growth  of  the  Constitution  in  the  Federal  Convention  of  1787, 
an  effort  to  trace  the  origin  and  development  of  each  separate  clause 
from  its  first  suggesti.)n  in  that  body  to  the  form  finally  approved;  con- 
taining also  a  facsimile  of  a  heretofore  unpublished  manuscript  of  the 
first  draft  of  the  tribunal  made  for  use  in  the  Committee!  of  Details,"  by 
William  M.  Meigs.     Second  edition,  Philadelphia  and  London,  1900. 

There  are  numerous  otiier  able  and  interesting  histories  of,  and  com- 
mentaries on,  the  Constitution  which  give  detailed  accounts  of  the  Fed- 
eral and  State  Conventions,  but  the  author  considers  that  in  consulting, 
and  referring  to  those  enumerated  in  this  note,  the  student  of  Consti- 
tutional history  will  obtain  a  thorough  knowledge  of  all  the  known  his- 
tory of  the  formation  and  adoption  of  the  Constitution. 

297 


§170 


TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  VI. 


no\v  preside  over  their  peaceful  councils  in  the  Convention 
which  was  to  perpetuate  the  national  independence,  the 
achievement  of  which  had  been  to  such  a  great  extent,  the  re- 
sult of  his  efforts  and  abilit3\  It  was  fitting,  also,  that  the 
nomination  of  George  "Washington  for  the  Presidency  of  the 
Convention  should  come  from  Pennsylvania,  as  Benjamin 
Franklin  could  have  been  the  only  possible  competitor.  It 
api)ears  from  Mr.  Madison's  notes  that  the  Doctor  himself 
was  to  have  made  the  nomination,  but  was  prevented  from 
attending  the  first  meeting  by  the  state  of  the  weather  and 
the  condition  of  his  health."^  Throughout  the  whole  course 
of  the  Convention  we  can  see  the  effects  of  the  great  strength, 
and,  at  the  same  time,  the  moderation  and  the  complete  self- 
control  of  those  two  men,  Washington  and  Franklin,  one  of 
them,  the  greatest  soldier,  and  the  other,  the  greatest  diplo- 
mat, that  their  country  has  ever  produced.^ 


-  Madison's  Journal  of  the  Con- 
stitutional Convention,  Edition 
1893,  p.  54,  note. 

^SEC'KETART  FOSTER'S  OPINION  OF 
BENJAMIN  FRANKLIN  AS  A  DIP- 
LOMAT. 

"In  closing  the  review  of  the 
Revolutionary  period,  I  desire  to 
add  a  word  as  to  the  men  who  rep- 
resented our  country  abroad  from 
the  Declaration  of  Independence 
to  the  adoption  of  the  Constitution. 
In  the  list  are  the  illustrious  names 
of  Franklin,  Adams,  Jay,  and  Jef- 
ferson, men  whose  career  abroad 
compares  favorably  with  that  of 
the  best  trained  diplomats  of  Eu- 
rope.    Butthere  were  many  others. 


enness  and  dishonesty  marked 
the  career  of  more  than  one  of 
them.  It  constitutes  a  record 
which  I  am  jjleased  to  say  could 
hardly  be  repeated  in  our  day. 
In  the  midst  of  this  mixture  of 
good  and  evil,  the  calm  and  up- 
right character  of  Franklin  stands 
out  in  bold  relief.  He  did  not  es- 
cape criticism  and  scandal,  but  in 
his  long  service  he  never  failed  in 
his  duty  as  a  diplomat  and  patriot. 
As  we  have  seen,  his  acts  were  not 
above  criticism,  his  temper  was  not 
always  under  control,  and  we  could 
wish,  for  its  influence  on  the  gen- 
erations after  him,  that  his  private 
life  had  been  more  pure.  But 
when  we  review  the  history  of  our 
although  near  a  score  of  agents  and  '  Revolutionary  period,  the  place  in 
diplomatic  representatives,  some  '  the  public  esteem  and  in  value  of 
associated     with     Franklin,     and    service  to   the    country,   next    to 


Others  on  independent  missions. 
The  record  they  made  was  not  alto- 
gether a  creditable  one.  While  most 
of  them  were  inspired  by  patriotic 


Washington,  must  be  given,  not  to 
that  stern  patriot  John  Adams,  not 
to  Patrick  Henry,  Thomas  Jeffer- 
son, nor  to  any  military  hero,  but  to 


motives,  some  were  guilty  of  treach-    Benjamin  Franklin,   our  first  and 
ery;    bickering,    faultfinding,    and    greatest  diplomat." 
jealousy    prevailed;    and     drunk-] 

298 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§170 


The  deep-seated  conviction  in  Washington's  mind  that 
there  must  be,  not  only  a  union,  but  a  thovonghly  natw?ial 
union,  is  evidenced  by  his  own  writings  prior  to  the  Consti- 
tutional Convention ;  in  this  respect  Mr.  Curtis  says  in  his 
Constitutional  History,  which  has  already  been  quoted  from 
to  such  an  extent  that  the  author  feels  that  he  must  express 
his  great  appreciation  of  the  ability  of  Mr.  Curtis,  and  the 
assistance  which  he  has  rendered  to  all  students  of  constitu- 
tional history,  both  as  to  historical  facts  and  legal  prece- 
dents :  "  It  had  become  evident  to  him  that  we  never  should 
establish  a  national  character,  nor  be  justly  considered  and 
respected  by  the  nations  of  Europe,  without  enlarging  the 
powers  of  the  federal  government  for  the  regulation  of  com- 
merce. The  objection  which  had  been  hitherto  urged,  that 
some  states  might  be  more  benefited  than  others  by  a  com- 
mercial regulation,  seemed  to  hini  to  apply  to  every  matter 
of  general  utility.  'We  are,'  said  he,  writing  in  the  summer 
of  1785, '  either  a  united  people  under  one  head,  and  for  fed- 
eral purposes,  or  we  are  thirteen  independent  sovereignties 
eternally  counteracting  each  other.  If  the  former,  whatever 
such  a  raajoritj"  of  the  States  as  the  Constitution  points  out 
conceives  to  be  for  the  benefit  of  the  whole,  should,  in  my 
humble  opinion,  be  submitted  to  by  the  minority.  Let  the 
Southern  States  always  be  represented ;  let  them  act  more 
in  union ;  let  them  declare  freely  and  boldly  what  is  for  the 
interest  of,  and  what  is  prejudicial  to,  their  constituents; 
and  there  will,  there  must  be,  an  accommodating  spirit.     In 


And  in  a  footnote  Mr.  Foster 
adds  the  following: 

"  There  is  a  curious  letter  of  Mr. 
Jefferson,  in  which,  some  years  after 
the  event,  he  refers  to  the  death  of 
Dr.  Franklin  in  connection  with  an 
incident  of  Washington's  cabinet. 
The  Kingand  Convention  of  France, 
and  the  House  of  Representatives 
of  the  United  States,  had  decreed 
mourning,  and  Jefferson  proposed 
that  the  executive  department  also 
shoukl  wear  mourning.  To  this 
Washington  objected,  because  he 
should  not  know  where  to  draw  the 


line.  He  writes:  'I  told  him  the 
world  had  drawn  so  broad  a  line 
between  himself  and  Dr.  Franklin, 
on  the  one  side,  and  the  residue  of 
mankind,  on  the  other,  that  we 
might  wear  mourning  for  them, 
and  the  question  remain  new  and 
undecided  as  to  all  others.'  (8 
Writings  of  Jefferson,  2(54.)"  A 
Ceutnry  of  American  Diplomacy, 
by  Jolin  W.  Foster,  chapter  III, 
Peace  under  the  Confederation,  pp. 
101-102,  Boston  and  New  York, 
1900. 

299 


§  171  TRKATY-MAIvINCr  TOWEIl  OF  THE  U.  R.         [CH.  VI. 

the  establislunent  of  a  navigation  act,  this,  in  a  particuLar 
manner,  ought  and  will  doubtless  be  attended  to.  If  the  as- 
sent of  nine  states,  or,  as  some  propose,  of  eleven,  is  neces- 
sary to  give  validity  to  a  commercial  system,  it  insures  this 
measure,  or  it  cannot  be  obtained.'  "^ 

§  ITl.  Opening  business  of  Conventiou,  May  25th;  Ran- 
dolph's resolutions,  3Iay  29th — The  original  (hite  for  which 
convention  had  been  called  was  May  14th,  but  on  that  day 
only  a  small  number  of  delegates  assembled.  Seven  states 
were  not  represented  until  the  25th,  when  the  President  was 
elected  ;  on  May  28th  the  Convention  again  met,  but  only  for 
the  adoption  of  rules ;  ^  on  May  29th,  Mr.  Edmund  Kandolph, 
of  Virginia,  opened  the  main  business  and  stated  to  the  Con. 
vention  that  a  closer  federal  union  was  necessary,  as  the  Con- 
federation possessed  no  security  for  the  States  on  account  of 
the  lack  of  authority  in  the  Central  Government,  of  which  he 
cited  many  examples,  laying  particular  stress  upon  the  fact 
that  Congress  had  no  power  to  punish  the  infractions  of 
treaties  which  had  become  so  notorious  as  to  prejudice  us  in 
the  eyes  of  other  nations.  "  He  commented  on  the  diffi- 
culty of  the  crisis  and  the  necessity  of  preventing  the  fufil- 
ment  of  the  prophecies  of  the  American  downfall."  He 
submitted  a  series  of  resolutions,  embracing  changes  that 
ought  to  be  made  in  the  construction  of  the  federal  system; 
he  then  proceeded  to  enumerate  the  defects  of  the  present 
s3'-stem,  and  first  and  foremost  he  placed  the  fact  .that  "the 
Confederation  produced  no  securitv  against  foreign  invasion  ; 
Congress  not  being  permitted  to  prevent  a  war,  nor  to  sup- 
port it  by  their  own  authority.  Of  this  he  cited  many  ex- 
amples, most  of  which  tended  to  show  that  they  could  not 
cause  infractions  of  treaties  or  of  the  law  of  nations  to  be 
punished ;  that  particular  States  might  by  their  conduct 
provoke  war  without  control."^  The  sixth  resolution  of 
this  series  provided  that  "  the  National  Legislature  ought  to 
be  empowered  to  enjoy  the  legislative  rights  vested  in  Con- 


*  Curtis'  Constitutional  History 
of  the  United  States,  New  York, 
1899,  vol.  1,  chap.  XVI,  p.  266,  quot- 
ing from  IX  Washington's  Writ- 
ings, 166. 

300 


§  171. 

1  Madison  Papers,  vol.  II,  p.  722. 

2  Idem,  p.  730. 


CH.  VI.]  THE   FEDERAL   CONVENTION.  §  172 

gress  by  the  Confederation,  and,  moreover  to  legislate  in  all 
cases  to  which  the  separate  States  are  incompetent,  or  in 
which  the  harmony  of  the  United  States  may  be  interrupted 
by  the  exercise  of  individual  legislation ;  to  negative  all  laws 
passed  by  the  several  States  contravening,  in  the  opinion  of 
the  National  Legislature,  the  Articles  of  Union,  or  any  treaty 
subsisting  under  the  authority  of  the  Union ;  and  to  call 
forth  the  force  of  the  Union  against  any  member  of  the 
Union  failing  to  fulfill  its  duty  under  the  Articles  thereof."^ 
Mr.  Randolph  concluded  with  an  exhortation  not  to  suffer 
the  present  opportunity''  of  establishing  general  peace,  har- 
mony, happiness  and  liberty  in  the  United  States  to  pass 
away  unimproved.* 

§  172.  Pinckuey's  plan;  treaties  to  be  made  by  Senate; 
May  29th. — Mr.  Charles  Pinckney,  of  South  Carolina,  also 
submitted  a  plan  of  government,  in  which  he  proposed  that 
the  source  of  authority  sliould  be  changed  from  the  States,  as 
it  was  described  in  the  Articles  of  Confederation,  to  We,  The 
People  of  tJie  States  (?/"  (enumerating  them  by  name),  as  well 
as  many  other  changes  which  were  afterwards  incorporated 
in  the  Constitution.^  This  draft  contained  a  proposition  for 
a  Senate,  some  of  whose  exclusive  powers  were,  "to  declare 
war ;  and  to  make  treaties ;  and  to  appoint  ambassadors  and 
other  ministers  to  foreign  nations,  and  judges  of  the  Supreme 
Court."  ^  It  also  contained  prohibitions  against  any  state 
entering  into  any  treaty  or  alliance,  or  confederation,  or  com- 
pact with  other  States.^  Article  YI,  as  proposed  in  his  draft, 
contained  a  clause  which  is  almost  identical  in  wording  with 
the  corresponding  clause  which  was  finally  incorporated  in 
the  Constitution  :  "  All  acts  made  by  the  Legislature  of  the 
United  States  pursuant  to  this  Constitution,  and  all  treaties 
made  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land  ;  and  all  judges  shall  be  bound  to 
consider  them  as  such  in  their  decisions."  *  It  is  well  to  note 
that,  although  nearly  every  paragraph  of  this  plan,  including 
the  one  just  quoted,  were  subsequently  changed  as  to  some  of 


8  Madison  Papers,  vol.  II,  p.  732. 

*  Idem,  p.  735. 

§172. 

1  Idem,  p.  735,  et  seq. 


-  Idem,  p.  742. 
8  Idem,  p.  744. 
*  Idem,  p.  741. 


301 


§1"^ 


TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  VI. 


their  details,  and  many  of  the  great  principles  at  first  proposed 
were  altered  or  modified,  the  expression  that  treaties  made  by 
the  United  States  should  be  the  supreme  law  of  the  land,  and 
that  all  judges  should  be  bound  to  so  consider  them,  remained 
intact,  until  it  was  finally  adopted  in  the  finished  instrument, 
with  the  exception  of  a  few  words  inserted  to  make  the  princi- 
ple established  somewhat  stronger  and  broader.  Mr.  Pinck- 
ney's  plan  was  referred  to  the  Committee  of  the  Whole,  to- 
gether with  Governor  Randolph's  resolutions,^  and  they  were 
afterwards  discussed  in  that  committee,  article  by  article ; 
not,  however,  until  after  there  had  been  a  discussion  as  to  the 
nature  of  the  proposed  government,  the  details  of  which  ap- 
pear in  the  notes  to  this  section.® 


^Madison  Papers,  vol.  II,  p.  746. 

^  Wednesday  May  30  In  Commit- 
tee of  Whole. 

"The  propositions  of  Mr.  Ran- 
dolph wliich  bad  been  referred  to 
tbe  Committee  being  taken  up,  be 
moved,  on  tbe  suggestion  of  Mr.  G. 
Morris,  tbat  tbe  first  of  his  proposi- 
tions,— to  wit:  '■Resolved  that  the 
Article  of  Confederation  ought  to  he 
so  corrected  and  enlarged.,  as  to  ac- 
complish the  objects  proposed  by  their 
institution ;  namely,  common  de- 
fence, security  of  liberty,  and  general 
welfare, — should  mutually  be  post- 
poned, in  order  to  consider  the 
three  following: 

"  '  1.  That  a  union  of  tbe  States 
merely  federal  Avill  not  accomplish 
tbe  objects  proposed  by  tbe  Articles 
of  Confederation,  namely,  common 
defence,  security  of  liberty,  and 
general  welfare. 

'"2.  Tbat  no  treaty  or  treaties 
among  the  whole  or  part  of  tbe 
States,  as  individual  sovereignties, 
would  be  sufficient. 

"  '3.  Tha.t  a  national  government 
ought  to  be  established,  consisting 
of  a.  supreme  Legislative,  Executive 
and  Judiciary.' 

302 


"The  motion  for  postponing  was 
seconded  by  Mr.  G.  Morris,  and 
unanimously  agreed  to. 

"Some  verbal  criticisms  were 
raised  against  the  first  proposition, 
and  it  was  agreed,  on  motion  of 
Mr.  Butler,  seconded  by  Mr.  Ran- 
dolph, to  pass  on  to  the  third, 
which  underwent  a  discussion,  less, 
however,  on  its  general  merits  than 
on  the  force  and  extent  of  tbe  par- 
ticular terms  national  and  supreme. 

"  Mr.  Charles  Pinckney  wished  to 
know  of  Mr.  Randolph,  whether  he 
meant  to  abolish  tbe  State  govern- 
ments altogether.  Mr.  Randolph 
replied,  tbat  he  meant  by  these  gen- 
eral propositions  merely  to  intro- 
duce tbe  particular  ones  which 
explained  the  outlines  of  the  system 
be  bad  in  view. 

"Ml-.  Butler  said,  he  bad  not 
made  up  his  mind  on  the  subject, 
and  was  open  to  the  light  which  dis- 
cussion might  throw  on  it.  After 
some  general  observations,  be  con- 
cluded with  saying,  that  be  had 
opposed  the  grant  of  powers  to  Con- 
gress heretofore,  because  the  whole 
power  was  vested  in  one  body.  Tbe 
proposed  distribution  of  tbe  powers 


CH.  VI.] 


THE  FEDERAL  CONVENTION. 


§173 


§  173.  Pinckuey's  plan  to  negative  State  laws ;  Madi- 
son's views  ;  June  8th. — In  discussing  the  policy  of  giving 
the  national  legislature  authority  to  negative  State  laws, 
Mr.  Pinckney  said,  on  J  une  8th,  that  unless  such  }30\ver  were 
given,  however  extensive  the  national  prerogatives  might  be 
on  paper,  it  would  be  impossible  to  defend  them ;  that  already 
acts  of  Congress  had  been  defeated  by  this  means,  and  that 
foreign  treaties  had  frequently  been  violated.  He  contended 
that  "  this  universal  negative  was,  in  fact,  the  corner-stone  of 
an  efficient  National  Government ;  and  that,  as  it  had  existed 
under  the  British  Government,  the  negative  of  the  Crown 
had  been  found  beneficial;"  and  he  added,  "the  States  are 
more  one  nation  now,  than  the  colonies  were  then."  ^ 


with  different  bodies  changed  the 
case,  and  would  induce  him  to  go 
great  lengths. 

"  General  Pinckney  expressed  a 
doubt  whether  the  act  of  Congress 
recommending  the  Convention,  or 
the  commissions  of  the  Deputies  to 
it,  would  authorize  a  discussion  of 
a  system  founded  on  different  prin- 
ciples from  the  Federal  Constitu- 
tion. 

"  Mr.  Gerry  seemed  to  entertain 
the  same  doubt. 

"  Mr.  Gouverneur  Morris  ex- 
plained the  distinction  between  a 
federal  and  a  national,  supreme  gov- 
ernment; the  former  being  a  mere 
compact  resting  on  the  good  faith 
of  the  parties;  the  latter  having  a 
complete  and  compulsive  oper- 
ation. He  contended  that  in  all 
communities  there  must  be  one 
supreme  power,  and  one  only." 
Madison  Papers,  vol.  II,  pp.  746- 
748. 

§173. 

1  Friday,  June  8th,  In  Committee 
of  the  Whole. 

"On  a  reconsideration  of  the 
clause  giving  the  National  Legisla- 
ture a  negative  on  such  laws  of  the 
States  as  might  be  contrary  to  the 


Articles  of  Union,  or  treaties  with 
foreign  nations: 

"  Mr.  Pinckney  moved,  '  that  the 
National  Legislature  should  have 
authority  to  negative  all  laws  which 
they  should  judge  to  be  improper.' 
He  urged  that  such  a  universality 
of  the  power  was  indispensably 
necessary  to  render  it  effectual; 
that  the  States  must  be  kept  in 
due  subordination  to  the  nation; 
that  if  the  States  were  left  to  act 
of  themselves  in  any  case,  it  would 
be  impossible  to  defend  the  na- 
tional prerogatives,  however  exten- 
sive they  might  be,  on  paper;  that 
the  acts  of  Congress  had  been  de- 
feated by  this  means;  nor  had  for- 
eign treaties  escaped  repeated  vio- 
lations; that  this  universal  negative 
was  in  fact  the  cornerstone  of  an 
efficient  national  Government;  that 
under  the  British  Government  the 
negative  of  the  Crown  had  been 
found  beneficial;  and  the  States  are 
more  one  nation  now,  than  the 
colonies  were  then. 

"  Mr.  Madison  seconded  the  mo- 
tion. He  could  not  but  regard  an 
indefinite  power  to  negative  legis- 
lative acts  of  the  States  as  abso- 
lutely necessary  to  a  perfect  system. 
303 


§  173  TREATY-IVIAKING  POWER  OF  THE  U.  S.         [CH.  VI. 

The  power  of  negativing  state  legislation  was  not  vested 
in  the  National  Government  in  so  many  words,  for  event- 
ually Mr.  Pinckney's  motion  Avas  lost,  although  it  was  sup- 
ported by  some  of  the  strongest  men  in  the  Convention, 
including  Mr.  Madison ;  in  fact,  at  one  time  it  was  adopted 
in  Committee  of  the  Whole.  So  far  as  treaties  are  concerned, 
however,  the  object  of  his  motion  was  practically,  although 
indirectl}^,  attained  by  the  clause  which  he,  himself,  had 
framed  and  which,  when  it  was  subsequently  incorporated 
in  Article  VI  of  the  Constitution,  made  treaties  the  supreme 
law  of  the  land,  and  under  which  the  Supreme  Court  of  the 
United  States  has  held  that  the  stipulations  in  a  treaty,  as 
well  as  the  appropriate  legislation  enforcing  it,  override  all 


Experience  had  evinced  a  constant 
tendency  in  the  States  to  encroach 
on  the  Federal  authority;  to  violate 
national  treaties;  to  infringe  the 
rights  and  interests  of  each  other; 
to  oppress  the  weaker  party  within 
their  respective  jurisdictions.  A 
negative  was  the  mildest  expedient 
that  could  be  devised  for  prevent- 
ing these  mischiefs.  The  existence 
of  such  a  check  would  prevent  at- 
tempts to  commit  them.  Should 
no  such  precaution  be  engrafted, 
the  only  remedy  would  be  in  an 
appeal  to  coercion.  Was  such  a 
remedy  eligible?  Was  it  practica- 
ble? Could  the  national  resources, 
if  exerted  to  the  utmost,  enforce  a 
national  decree  against  Massachu- 
setts, abetted,  perhaps,  by  several 
of  her  neighbors?  It  would  not  be 
possible.  A  small  proportion  of 
the  community,  in  a  compact  situ- 
ation, acting  on  the  defensive,  and 
at  one  of  its  extremities,  might  at 
any  time  bid  defiance  to  the  na- 
tional authority.  Any  government 
for  the  United  States,  formed  on 
the  supposed  practicability  of  using 
force  against  the  unconstitutional 
proceedings  of  the  States,  would 
prove  as  visionary  and  fallacious  as 

304 


the  government  of  Congress.  The 
negative  would  render  the  use  of 
force  unnecessary.  The  States 
could  of  themselves  pass  no  opera- 
tive act,  any  more  than  one  branch 
of  a  legislature,  where  there  are 
two  branches,  can  proceed  without 
the  other.  But  in  order  to  give 
the  negative  this  efficacy,  it  must 
extend  to  all  cases.  A  discrimina- 
tion would  only  be  a  fresh  source 
of  contention  between  the  two  au- 
thorities. In  a  word,  to  recur  to 
the  illustrations  borrowed  from 
the  planetary  system,  this  preroga- 
tive of  the  General  Government  is 
the  great  pervading  principle  that 
must  control  the  centrifugal  ten- 
dency of  the  States;  which,  with- 
out it,  will  continually  lly  out  of 
their  proper  orbits,  and  destroy 
the  order  and  harmony  of  the 
political  system. 

"  Mr.  Williamson  was  against 
giving  a  power  that  might  restrain 
the  States  from  regulating  their 
internal  police. 

"  Mr.  Gerry  could  not  see  the  ex- 
tent of  such  a  power,  and  was 
against  every  power  that  was  not 
necessary."  Madison  Papers,  vol. 
II,  pp.  821-823. 


CH.  VI.] 


THE  FEDERAL  CONVENTION. 


§175 


State  legislation,  thus  practically  negativing  any  that  may 
be  in  conflict  tiierewith,^ 
§174.  ConsideiMtioii  of  treaty-making  power ;  June  13th. 

— The  method  of  exercising  the  treaty -making  power  aj)pears 
to  have  been  considered  for  the  first  time  on  June  13th,  on 
which  day  the  Committee  rose,  after  making  a  report,  the 
sixth  paragraph  of  which  was  as  follows : 

'■^  Mesolved,  That  the  National  Legislature  ought  to  be 
empowered  to  enjoy  the  legishitive  rights  vested  in  Congress 
by  the  Confederation  ;  and  moreover  to  legislate  in  all  cases 
to  which  the  separate  States  are  incompetent,  or  in  which 
the  harmony  of  the  United  States  may  he  interrupted  hy  the 
exercise  of  individual  legislation  /  to  negative  all  laws  passed 
by  the  several  States  contravening,  in  the  opinion  of  the 
National  Legislature  the  Articles  of  Union,  or  any  treaties 
subsisting  under  the  authority  of  the  Union."  ^ 

§  175.  Mr.  Patersou's  "New  Jersey"  plan  submitted; 
June  14th  and  15th.— On  June  14th,  Mr.  Paterson  of  New 
Jersey,  on  behalf  of  an  element  of  the  Convention  from  Con- 
necticut, New  Jersey,  New  York,  Delaware,  and  which  pos- 
sibly included  Mr.  Martin  of  Maryland,  and  which  was  to 
some  extent  dissatisfied  with  the  report  of  the  Committee  of 
the  Whole/    asked  leave  to  submit  a  form  of  government 


2  See  chap.  XI,  §§  324,  et  seq. 
Vol.11,  and  cnses  there  collated,  on 
relative  effect  of  State  laws  and 
treaty  stipulations. 

§  174. 

1  Madison  Papers,  vol.  II,  p.  859; 
(italics  in  quotation  are  the  au- 
thor's.) 

§175. 

1 "  This  plan  had  been  concerted 
among  the  Deputation,  or  mem- 
bers thereof,  from  Connecticut, 
New  York,  New  Jersey,  Dela- 
ware, and  perhaps  Mr.  Martin, 
from  Maryland,  who  made  with 
them  a  common  cause,  though 
on  different  principles.  Connecti- 
cut and  New  York  were  against  a 
departure  from  the  principle  of  the 
Confederation,   wishing  rather  to 

20 


add  a  few  new  powers  to  Congress 
than  to  substitute  a  National  Gov- 
ernment. The  States  of  New  Jer- 
sey and  Delaware  were  opposed  to 
a  National  Government,  because 
its  patrons  considered  a  propor- 
tional representation  of  the  States 
as  the  bMsis  of  it.  The  engerness 
displayed  by  the  members  opposed 
to  a  National  Government,  from 
these  different  motives,  began  now 
to  produce  serious  anxiety  for  the 
result  of  the  Convention.  Mr. 
Dickinson  said  to  Mr.  Madison, 
'You  see  the  consequence  of  push- 
ing things  too  far.  Some  of  the 
members  from  the  small  States 
wish  for  two  branches  in  the  Gen- 
eral Legislature,  and  are  friends 
to   a   good   National  Government; 

305 


§  175  TREATY->LA.KINCr  POWER  OF  THE  U.  S.        [CH.  VI. 

known  as  the  New  Jersey  Plan ;  in  presenting  it,  he  described 
it  as  being  "  more  purely  federal "  than  the  one  suggested 
by  the  Committee.^ 

The  proposition  consisted  of  a  series  of  resolutions  which 
were  presented  on  the  following  day,  June  15th ;  the  first 
resolution  was  to  the  effect  "  that  the  Articles  of  Confedera- 
tion ought  to  be  so  revised,  corrected  and  enlarged,  as  to 
render  the  Federal  Constitution  adequate  to  the  exigencies 
of  government,  and  the  preservation  of  the  Union  ;"^  he  pro- 
posed to  give  the  Federal  judiciary  jurisdiction  in  all  cases 
involving  the  construction  of  treaties/  The  sixth  resolution 
was  as  follows : 

"  6.  Resolved^  that  all  acts  of  the  United  States  in  Con- 
gress, made  by  virtue  and  in  pursuance  of  the  powers  hereby, 
and  by  the  Articles  of  Confederation,  vested  in  them,  and  all 
treaties  made  and  ratified  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  respective  States,  so 
far  forth  as  those  acts  or  treaties  shall  relate  to  the  said 
States  or  their  citizens ;  and  that  the  Judiciary  of  the  several 
States  shall  be  bound  thereby  in  their  decisions,  anything  in 
the  respective  laws  of  the  individual  States  to  the  contrary 
notwithstanding :  and  that  if  any  State,  or  any  body  of  men 
in  any  State,  shall  oppose  or  prevent  the  carrying  into  execu- 
tion such  acts  or  treaties,  the  Federal  Executive  shall  be  au- 
thorized to  call  forth  the  power  of  the  confederated  States, 
or  so  much  thereof  as  may  be  necessary,  to  enforce  and 
compel  an  obedience  to  such  acts  or  an  observance  of  such 
treaties."  ^ 

It  will  be  seen  that,  so  far  as  the  treaty-making  power  was 
concerned,  the  only  change  suggested  by  Mr.  Paterson  was 
to  enlarge  the  authority  of  the  United  States  and  to  make 
treaties,  not  as  Mr.  Pinckney  had  suggested,  "  the  supreme 
law  of  the  land,"  but  the  "  supreme  law  of  the  respective 
States ; "  in  fact,  so  important  did  he  consider  this  treaty- 
making  power  that  he  considered  it  to  be  necessary  not  only 

States,'  "    Madison  Papers,  vol.  II, 
p.  862,  note. 
^Idem,  p.  862. 


but  we  would  sooner  submit  to 
foreign  power,  than  submit  to  be 
deprived  in  both  branches  of  the 
legislature,  of  an  equality  of  suf- 
frage, and  thereby  be  thrown  un- 
der the  domination  of  the  larger 

306 


3  Idem,  p.  863. 
■^Idem,  p.  866. 
5/dem,  p.  866. 


CH.  VI.]       THE  FEDERAL  CONVENTION.  §  176 

to  clothe  the  United  States  with  power  to  enforce,  and  com- 
pel, obedience  to  the  acts  of  Congress,  but  also  to  enforce 
the  observance  of  all  treaties  made  by  the  United  States. 

§  17(5.  Power  to  make  and  enforce  treaties  a  practical 
matter  in  1787. — In  this  respect  it  must  be  remembered 
that  tlie  discussion  in  the  Constitutional  Convention  in  regard 
to  the  supervisory  powers  of  the  Federal  Government  over 
the  States  in  regard  to  the  enforcement,  and  the  prevention  of 
violations,  of  treaty  stipulations,  was  by  no  means  either  aca- 
demic, or  confined  to  mere  future  possibilities ;  at  that  time 
the  country  was  in  a  great  state  of  excitement  over  the  proper 
enforcement  of  the  provisions  of  the  treaty  of  peace  regard- 
ing the  collection  of  debts  owing  by  Americans  to  citizens  of 
Great  Britain,^  and  also  in  regard  to  the  navigation  of  the 
Mississippi  River  as  it  would  be  affected  by  the  then  pro- 
posed treaty  with  Spain,  which,  as  the  owner  of  Louisiana 
and  New  Orleans  country,  controlled  the  mouth  of  that 
river.^  It  was  therefore,  in  view  of  actually  existing  circum- 
stances that  the  Constitutional  Convention  not  only  declined 
to  place  any  limitations  upon  the  treats-making  power,  but 
also  expressly  provided  that  all  treaties  made,  or  which  should 
be  made,  under  the  authority  of  the  United  States  were 
paramount  to  the  laws  and  the  constitutions  of  the  several 
States  ;  in  fact,  some  of  the  burning  questions  of  the  day  and 
hour  were  the  treatment  to  be  accorded  to  British  creditors 
and  American  debtors,  and  the  relative  effect  of  treaty  pro- 
visions providing  for  the  payment  of  the  debts  to  British  cit- 
izens, and  of  the  laws  which  had  been  passed  by  some  of  the 
States  confiscating  the  identical  debts  for  State  use.^ 

Professor  McMaster,  in  the  Third  Chapter  of  the  First 
Volume  of  his  able  and  interesting  "History  of  the  People 
of  the  United  States,"  has  given  a  detailed  account  of  the 
conditions  of  the  mercantile  relations  between  this  country 
and  Great  Britain  as  they  were  affected  by  the  treaty  stipu- 


§176. 

iSeo  pp.  268,  et  seq.,  ante. 

2 For  the  effect  of  this  particular 
element  upon  the  ratilication  of  the 
Constitution  see  §  i222,  po^t,  rehit- 
ing  to  the  Convention  in  Virginia. 


3  See  Ware  vs.  Ilijlton,  U.  S.  Su- 
preme Ct.,  1796,  2  Dallas,  199,  and 
other  cases  collated  in  §§  324  etiseq., 
Vol.  II,  pp.  6,  et  seq. 


307 


§  177  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  VI. 

lations,  and  the  constriiclion  and  misconstruction  thereof, 
n\\(\  the  confusion  which  had  resulted  from  the  efforts  made 
bv  some  of  the  legishituri's  and  courts  to  evade  the  provisions 
of  the  treaties  in  regard  thereto.* 

§  177.  Work  of  Couveiitioii  continued  ;  Alexander 
Hamilton's  views,  June  IStli.  Mr.  Madison's  views, 
June  19tb. — The  Convention  again  resolved  itself  into  a  Com- 
mittee of  the  Whole  to  consider  jointly  the  plans  proposed 
by  Governor  Eandolph,  Mr.  Pinckney  and  Mr.  Paterson. 

"We  cannot  refer  to  all  the  differences  between  these  va- 
rious plans,  or  the  discussions  in  the  Convention  in  regard 
thereto,  as  we  must  necessaril}"  confine  ourselves  exclusively 
to  the  proceedings  relating  to  the  treaty-making  power. 

On  June  18th,  Alexander  Hamilton  is  reported  as  having 
taken  part  in  the  debate  of  the  Convention  for  the  first  time 
on  this  subject.  Before  offering  his  resolution  he  made  some 
remarks,  prefacing  them  with  the  statement  that  he  had 
hitherto  kept  silent  "  partly  from  respect  to  others  whose  su- 
perior abilities,  age  and  experience,  rendered  him  unwilling 
to  bring  forward  ideas  dissimilar  to  theirs,  and  partly  from 
his  delicate  situation  with  respect  to  his  own  State,  to  whose 
sentiments,  as  expressed  by  his  colleagues,  he  could  by  no 
means  accede." '  After  this  modest  disclaimer,  the  man  who 
above  all  others  was  to  aid  and  assist  in  the  final  ratification 
of  the  Constitution,  when  framed  and  submitted  to  the  peo- 
ple, and  to  the  State  conventions,  gave  his  reasojis  for  dis- 
senting to  some  extent  from  the  plans  before  the  Conven- 
tion, and  urged  that  the  strongest  power  possible  be  given 
to  the  Central  Government.  He  then  offered  a  series  of 
resolutions  in  regard  to  the  legislative  and  executive  powers, 
one  of  which  provided  that  the  Executive  should  "  with  the 
advice  and  approbation  of  the  Senate,  hav^e  the  power  of 
making'  all  treaties.''-^  During  the  debate  which  followed 
and  extended  through  several  succeeding  sessions,  Mr.  Madi- 
son stated,  on  June  19th,  that  he  did  not  think  Mr.  Pater- 


*  Chapter  III,  The  Low  State  of 
Trade  and  Commerce,  John  Bach 
McMastei's  History  of  the  People 
of  the  United  States,  New  York, 
1893,  vol.  I,  p.  221. 

308 


§  177. 

1  Madison  Papers,  vol.  II,  p.  878. 

2  Idem,  p.  891. 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§177 


son's  plan  went  far  enough  in  the  general  surrender  of  po^yer 
to  the  Confederation  ;  in  the  course  of  his  remarks,  he  said  :  ^ 
"  Will  it  prevent  the  violations  of  the  law  of  nations  and 
of  treaties  which,  if  not  prevented,  must  involve  us  in  the 
calamities  of  foreign  wars?  The  tendency  of  the  States  to 
these  violations  has  been  manifested  in  sundry  instances.  The 
files  of  Congress  contain  complaints  already,  from  almost 
every  nation  with  which  treaties  have  been  formed/  Hitherto 
indulgence  has  been  shown  us.  This  cannot  be  the  perma- 
nent disposition  of  foreign  nations.  A  rupture  with  other 
powers  is  the  greatest  of  calamities.  It  ought,  therefore,  to 
he  effectually  provided,  that  no  part  of  a  nation  shall  ham  it 
in  its  power  to  hring  them  on  the  ivhole.  The  existing  Con- 
federacy does  not  sufficiently  provide  against  this  evil.  The 
proposed  amendment  to  it  does  not  supply  the  omission.  It 
leaves  the  will  of  the  States  as  uncontrolled  as  ever."  The 
views  of  some  of  the  other  members  of  the  Convention  as 
they  were  expressed  in  this  debate  are  included  in  the  notes 
to  this  section.^ 


3  Madison  Papers,  vol.  II,  p.  896; 
(the  italics  are  the  author's.) 

*  For  the  complaints  to  which  Mr. 
Madison  alluded  see  §§  157, 164,  ante. 

5  Tuesday,  June  19th,  In  Commit- 
tee of  the  Whole. 

"The  first  Resolution,  'that  a 
national  Government  ought  to  be 
established,  consisting,  etc.,'  being 
taken  up, 

"Mr.  Wilson  observed  that,  by  a 
national  Government,  he  did  not 
mean  one  that  would  swallow  up 
the  State  Governments,  as  seemed 
to  be  wished  by  some  gentlemen. 
He  was  tenacious  of  the  idea  of 
preserving  the  latter.  lie  thought, 
contrary  to  the  opinion  of  Colonel 
Hamilton,  that  they  might  not 
only  subsist,  but  subsist  on  friendly 
terms  with  the  former.  They  were 
absolutely  necessary  for  certain 
purposes,  which  the  former  could 
not  reach.  All  large  governments 
must  be  subdivided  into  lesser  ju- 


risdictions. As  examples,  he  men- 
tioned Persia,  Rome,  and  particu- 
larly the  divisions  and  subdivisions 
of  England  by  Alfred. 

"Colonel      Hamilton     coincided 
with  the  proposition  as  it  stood  in 
the  Report.     He  had  not  been  un- 
derstood yesterday.     By  an  aboli- 
tion of  the  States,  he  meant  that 
no  boundary  could    be  drawn  be- 
tween the  National  and  State  Leg- 
islatures;  that    the    former    must 
therefore  have  indefinite  authority. 
If  it  were  limited  at  all,  the  rival- 
ship  of  the  States  would  gradually 
subvert  it.     Even  as  corporations, 
the  extent  of  some  of  them,  as  Vir- 
ginia,  Massachusetts,    etc.,  would 
be     formidable.      As     States,    he 
thought  they  ought  to  be  abolished. 
But  he  admitted   the  necessity  of 
leaving  them  in  subordinate  juris- 
dictions.    The  examples  of  Persia 
and  the  Roman  Empire,  cited  by 
Mr.  Wilson,  were,  he  thought,  in 
309 


§  178  TREATY-MAKING  POWER  OP  THE  U.  S.        [CH.  VI. 

§1TS.  Mr.  Patersou's  views  contr.asted  with  those  of 
Ml".  Madison  and  Mr.  Hamilton. — The  <rreat  difference  be- 


favor  of  his  doctrine,  the  creat. 
powers  delegated  to  the  Satraps 
and  Proconsuls  having  frequently 
produced  revolts  and  schemes  of 
independence. 

"  Mr.  King  wished,  as  everything 
depended  on  thjs  proposition,  that 
no  objection  might  be  improperly 
indulged  against  the  phraseology 
of  it.  He  conceived  that  the  im- 
port of  the  term  'States,'  'sover- 
eignty,' ^national,''  'federal,'  had 
of  ten  been  used  and  implied  in  the 
discussions  inaccurately  and  delu- 
sively. The  States  were  not '  sover- 
eigns '  in  the  seuse  contended  for  by 
some.  They  did  not  possess  the  pe- 
culiar features  of  sovereignty,— they 
could  not  make  war,  nor  peace,  nor 
alliances,  nor  treaties.  Considering 
them  as  political  beings,  they  were 
dumb,  for  they  could  not  speak  to 
any  foreign  sovereign  whatever. 
They  were  deaf,  for  they  could  not 
hear  any  propositions  from  such 
sovereign.  Tliey  had  not  even  the 
organs  or  faculties  of  defence  or 
offence,  for  they  could  not  of  them- 
selves raise  troops  or  equip  vessels, 
for  war.  On  the  other  side,  if  the 
union  of  the  States  comprises  the 
idea  of  a  confederation,  it  com- 
prises that  also  of  consolidation. 
A  union  of  the  States  is  a  union  of 
the  men  composing  them,  from 
whence  a  national  character  results 
to  the  whole.  Congress  can  act 
alone  without  the  States;  they  can 
act,  and  their  acts  will  be  binding, 
against  the  instructions  of  the 
States.  If  they  declare  war,  war 
is  cZe  jure  declared  ;  captures  made 
in  pursuance  of  it  are  lawful;  no 
acts  of  the  States  can  vary  the  sit- 
uation, or  prevent  the  judicial  con- 
sequences.   If  the  States,  therefore, 

310 


retained  some  portion  of  their  sov- 
ereiguty,  they  had  certainly  di- 
vested themselves  of  essential 
portions  of  it.  If  they  formed  a 
confederacy  in  some  respects,  they 
formed  a  nation  in  others.  The 
Convention  could  clearly  deliber- 
ate on  and  propose  any  alterations 
that  Congress  could  have  done  un- 
der the  Federal  Articles.  And 
could  not  Congress  propose,  by 
virtue  of  the  last  Article,  a  change 
in  any  article  whatever, — and  as 
well  that  relating  to  the  equality 
of  suffrage,  as  any  other?  He 
made  these  remarks  to  obviate 
some  scruples  which  had  been  ex- 
pressed. He  doubted  much  the 
practicability  of  annihilating  the 
States;  but  thought  that  much  of 
their  power  ought  to  be  taken  from 
them. 

"Mr.  Martin  said,  he  considered 
that  the  separation  from  Great 
Britain  placed  the  thirteen  States 
in  a  state  of  nature  towards  each 
other;  that  they  would  have  I'e- 
mained  in  that  state  till  this  time, 
but  for  the  Confederation;  that 
they  entered  into  the  Confederati(m 
on  the  footing  of  equality;  that 
they  met  now  to  amend  it,  on  the 
same  footing;  and  that  he  could 
never  accede  to  a  plan  that  would 
introduce  an  inequality,  and  lay 
ten  States  at  the  mercy  of  Virginia, 
Massachusetts  and  Pennsylvania. 

"  Mi:  Wilson  couldnot  admit  the 
doctrine  that  when  the  colonies 
became  independent  of  Great  Brit- 
ain, they  became  independent  also 
of  each  other.  He  read  the  Dec- 
laration of  Independence,  observ- 
ing thereon,  that  the  United  Colo- 
nies were  declared  to  be  free  and 
independent  States;  and  inferring, 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§178 


tween  Mr.  Paterson  and  IMr.  Madison  was  that  the  former 
was  essentially  a  Federalist,  while  the  latter  was  more  of  a 
Nationalist ;  in  his  later  years,  however,  Mr.  Madison  became 
somewhat  narrower  in  his  views  in  regard  to  Constitutional 
construction,  even  to  the  extent  of  limiting  the  ver}?-  powers 
which  he,  himself,  had  done  so  much  to  vest  in  the  Central 
Government.^ 

On  June  21st  Mr.  Madison  clearly  expressed  his  views  in 
that  respect  as  follows  :  "  Were  it  practicable  for  the  General 
Government  to  extend  its  care  to  every  requisite  object  with- 
out the  co-operation  of  the  State  Governments,  the  people 
would  not  be  less  free  as  members  of  one  great  Republic,  than 
as  members  of  thirteen  small  ones.  A  citizen  of  Delaware  was 
not  more  free  than  a  citizen  of  Yirginia ;  nor  would  either  be 
more  free  than  a  citizen  of  America.  Supposing,  therefore,  a 
tendency  in  the  General  Government  to  absorb  the  State 


that  they  were  independent,  not 
individually  but  unitedly,  and  that 
they  were  confederated,  as  they 
were  independent  States. 

"  Colonel  Ilamilton  assented  to  the 
doctrine  of  Mr.  Wilson.  He  denied 
the  doctrine  that  the  States  were 
thrown  into  a  state  of  nature.  He 
was  not  yet  prepared  to  admit  the 
doctrine  that  the  Confederacy 
could  be  dissolved  by  partial  in- 
fractions of  it.  He  admitted  that 
the  States  met  now  on  an  equal 
footing,  but  could  see  no  inference 
from  that  against  concerting  a 
change  of  the  system  in  this  pai-- 
ticular.  He  took  this  occasion  of 
observing,  for  the  purpose  of  ap- 
peasing the  fear  of  the  small  States, 
that  two  circumstances  would  ren- 
der them  secure  under  a  national 
Government  in  which  they  might 
lose  the  equality  of  rank  which 
they  now  held:  one  was  the  local 
situation  of  the  three  largest  States, 
Virginia,  Massachusetts  and  Penn- 
sylvania. They  were  separated 
from   each    other  by  distance   of 


place,  and  equally  so,  by  all  the 
peculiarities  which  distinguish  the 
interests  of  one  State  from  those 
of  another.  No  combination,  there- 
fore, could  be  dreaded.  In  the 
second  place,  as  there  was  a  grada- 
tion in  the  States,  from  Virginia, 
the  largest,  down  to  Delaware,  the 
smallest,  it  would  always  happen 
that  ambitious  combinations  among 
a  few  States  might  and  would  be 
counteracted  by  defensive  combin- 
ations of  greater  extent  among  the 
rest.  No  combination  has  been 
seen  among  the  large  counties, 
merely  as  such,  against  lesser  coun- 
ties. The  more  close  the  union  of 
the  States,  and  the  more  complete 
the  autliority  of  the  whole,  the 
less  opportunity  will  be  allowed  to 
the  stronger  States  to  injure  tlie 
weaker."  Madison  Papers,  pp.  904 
-908. 

§  178. 

lA  notable  case  in  which  Mr. 
Madison's  views  in  regard  to  tlie 
limitations  on  tlie  Federal  Govern- 
ment was  his  veto  of  the   Cumber- 

311 


§  179  TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  VI. 

Governments,  wo  fatal  consequence  could  result.  Taking  the 
reverse  as  the  supposition,  that  a  tendency  should  be  left  in 
the  State  Governments  towards  an  independence  of  the  Gen- 
eral Government,  and  the  gioom}^  consequences  need  not  be 
pointed  out/'  ^ 

Notwithstanding  the  divergence  of  their  opinions  in 
some  respects,  both  Mr.  Madison  and  Mr.  Hamilton  were 
thoroughly  agreed  that  the  treaty  power  should  be  exclu- 
sively and  effectually  lodged  in  the  Central  Government. 
Their  subsequent  relations  in  the  preparation  and  publication 
of  the  Federalist  is  conclusive  evidence  that,  on  the  iireat  fun- 
damental  principles  of  establishing  a  strong  national,  or  cen- 
tral government,  they  were  in  thorough  accord  with  each 
other.  ^ 

§  179.  Mr.  King's  views  on  Sovereignty  of  States. — 
During  the  course  of  the  same  debate  Mr.  King,  referring 
to  the  phraseology  which  had  been  used,  said  that  some  ex- 
pressions had  been  improperly  used  during  the  discussion ; 
he  conceived  that  the  import  of  the  terms,  "  States,"  "  sov- 
ereignt}',"  '■'•national,^''  and  "federal,"  had  been  often  used 
inaccurately  and  delusively.  The  report  of  the  Convention 
shows  that  some  of  the  ablest  minds  composing  it  recognized 
the  extreme  importance  of  the  nationality  and  sovereignty 
of  the  Central  Government  and  its  superiority,  so  far  as 
matters  within  its  scope  are  concerned,  to  the  State  Gov- 
ernments, especially  in  regard  to  the  foreign  relations  of  the 
Union;  Mr.  King  is  reported  as  saying  that  so  far  from  the 
States  being  "  sovereigns  "  in  a  political  sense,  they  were  deaf 
and  dumb  as  they  did  not  possess  some  of  the  peculiar  fea- 
tures of  sovereignty,  amongst  them  that  of  making  treaties 
with  foreign  powers.^  Mr.  Gerry  and  Mr.  Martin  also  made 
some  remarks,  on  a  subsequent  day,  on  the  subject  of  State 
sovereignty  which  are  quoted  in  the  notes.^ 


land  Road  bill  on  March  3,  1887,  the 
last  day  of  his  second  term  as  Presi- 
dent of  the  United  States.  See 
Richardson's  Messages  of  the  Pres- 
idents, vol.  I,  p.  584. 

2  Madison  Papers,  vol.  II,  pp.  924 
-925. 

-312 


3  See  Extracts  from  Federalist,  in 
chap.  VIII,  post. 
§  179. 

1  See  Extract  from  Madison 
Papers,  quoted  in  note  4  under 
§  177,  p.  310,  ante. 

2  Friday,  June  29th,  In  Convention. 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§181 


§  180.  Dangerous  differences  in  Convention  on  other 

subjects  ;  Compromises  reached. — For  neaiij^  a  month  after 
this  the  Convention  was  engaged  in  discussing  questions  re- 
lating to  the  powers  of  the  Executive,  the  length  of  his  term 
of  office,  the  nature  of  State  representation  and  apportion- 
ment, the  methods  of  election  of  the  two  houses  of  Congress, 
and  of  estimating  the  population  of  the  States ;  these  dis- 
cussions at  times  became  so  heated  that  on  mcjre  than  one 
occasion  an  adjournment  sine  die,  without  accomplishing  any 
result  seemed  inevitable;  it  was  only  by  the  earnest  efforts 
of  such  men  as  Franklin,  Madison,  Hamilton  and  Sherman  in 
compelling  compromises  as  to  those  details  that  the  Conven- 
tion was  held  together  and  thus  enabled  to  complete  the 
work  which  finally  crowned  its  efforts.^ 

§  181.  Luther  Martin's  motion  in  regard  to  treaties; 
July  17th. — On  July  ITth,  on  motion  of  Mr.  Luther  Martin, 
the  following  resolution  was  agreed  to  nem.  con. : 

"  That  the  Legislative  acts  of  the  United  States  made  by 
virtue  and  in  pursuance  of  the  Articles  of  Union,  and  all 
treaties  made  and  ratified  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  respective  States,  as 
far  as  those  acts  or  treaties  shall  relate  to  the  said  States,  or 

will  probably  be  kept  up  till  the 
new  system  should  be  adopted. 
He  lamented  that,  instead  of  com- 
ing here  like  a  band  of  brothers, 
belonging  to  the  same  family,  we 
seem  to  have  brought  with  us  the 
spirit  of  political  negotiators. 

"Mr.  L.  Martin  remarked,  that  the 
language  of  the  States  being  sover- 
eign and  independent,  was  once  fa- 
miliar and  understood;  though  it 
seemed  now  so  strange  and  obscure, 
lie  read  those  passages  in  tiie  Ar- 
ticles of  Confederation  which  de- 
scribe them  in  that  language." 
Madison  Papers,  pp.  995-996. 

§  180. 

1  See  especially  in  regard  to  pro- 
I)osed  adjournment  nine  die,  Madi- 
son Papers,  vol.  II,  pp.  1107-1113, 
Session  of  July  10th. 


"  Mr.  Gerry  urged,  that  we  never 
were  independent  States,  were  not 
such  now,  and  never  could  be,  even 
on  the  principles  of  the  Confedera- 
tion. The  States,  and  the  advo- 
cates for  them,  were  intoxicated 
with  the  idea  of  their  sovereignty. 
He  was  a  member  of  Congress  at 
the  time  the  Federal  Articles  were 
formed.  The  injustice  of  allowing 
each  State  an  equal  vote  was  long 
insisted  on.  He  voted  for  it,  but  it 
was  against  his  judgment,  and 
under  the  pressure  of  public  dan- 
ger, and  the  obstinacy  of  the  lesser 
States.  The  present  Confedei'ation 
he  considered  as  dissolving.  The 
fate  of  the  Union  will  be  decided 
by  the  Convention.  If  they  do  not 
agree  on  something,  few  delegates 
will  probably  be  appointed  to 
Congress.      If    they  do    Congress 


313 


§  183  TREATY-^LVKINO  POWER  OF  THE  U.  S.         [CH.  VI. 

their  citizens  and  inhabitants;  and  that  the  Judiciaries  of 
the  several  States  shall  be  bound  thereby  in  their  decisions, 
anything  in  the  respective  laws  of  the  individual  States  to 
the  contrary  notwithstanding."  * 

It  is  significant  that  this  resolution  was  adopted  immedi- 
ately after  the  rejection  of  the  resolution  to  the  effect  that 
the  Federal  Congress  should  have  the  right  to  negative  laws 
passed  by  the  Legislatures  of  the  respective  States,  which  had 
previously  been  adopted  by  the  Convention  in  Committee  of 
the  Whole ;  as  stated  above,  the  practical  effect  of  the  negative 
of  State  legislation  so  far  as  the  relations  affected  by  treaties 
with  foreign  powers  is  concerned,  has  been  preserved  by  the 
paramount  provisions  of  Article  A^I  of  the  Constitution.^ 

§  182.  Mr.  James  Wilson's  views  on  Treaties. — During 
the  debate  in  regard  to  the  powers  of  the  Senate  which  had 
preceded  this,  Mr.  Wilson  of  Pennsylvania,  while  urging  a 
nine  year  term  for  Senators  in  order  to  give  stability  to  the 
Senate  as  a  bod}^,  made  some  observations,  on  June  26th, 
which  he  believed  had  not  been  suggested  up  to  that  time,  as 
follows :  "  Every  nation  ma}^  be  regarded  in  two  relations, 
first,  to  its  own  citizens ;  secondly,  to  foreign  nations.  It  is, 
therefore,  not  only  liable  to  anarch}^  and  tyranny  within,  but 
has  wars  to  avoid  and  treaties  to  obtain  from  abroad.  The 
Senate  will  probably  be  the  depositary  of  the  powers  concern- 
ing the  latter  objects.  It  ought  therefore  to  be  made  re- 
spectable in  the  eyes  of  foreign  nations.  The  true  reason 
why  Great  Britain  has  not  yet  listened  to  a  commercial  treaty 
with  us  has  been,  because  she  had  no  confidence  in  the  sta- 
bility or  efficacy  of  our  Government."  ^ 

§  183.  Committee  of  Detail ;  resolutions  as  to  Treaties ; 
July  26tli. — Mr.  Madison's  Journal  does  not  again  refer  to 
the  treaty  power  until  July  26th,  when  the  Convention  ad- 
journed until  August  6th,  after  appointing  a  Committee  of 
Detail  to  draft  a  form  of  Constitution  embodying  the  prin- 
ciples which  had  been  agreed  upon,  and  having  also  adopted 
for  the  guidance  of  the  Committee  a  series  of  twenty-three 
resolutions,  numbers  6  and  7  thereof  being  as  follows: 

§  181.  §  182. 

1  Madison  Papers,  vol.  II,  p.  1119.       ^  Madison  Papers,  vol.  II,  p.  968. 
2 See  §  173,  p.  Z03,ante. 
314 


CH.  VI.]        THE  FEDERAL  CONVENTION.  §  184 

"  6.  Resolved^  That  the  National  Legislature  ought  to  pos- 
sess the  legislative  rights  vested  in  Congress  by  the  Confed- 
eration ;  and,  moreover,  to  legislate  in  all  cases  for  the  general 
interests  of  the  Union,  and  also  in  those  to  which  the  States 
are  separately  incompetent^  or  in  which  the  harmony  of  the 
United  States  may  he  interrupted  hy  the  exercise  of  individ- 
ual legislation. 

"  7.  Resolved,  That  the  legislative  acts  of  the  United  States, 
made  by  virtue  and  in  pursuance  of  the  Articles  of  Union, 
and  all  treaties  made  and  ratified  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  respective 
States,  as  far  as  those  acts  or  treaties  shall  relate  to  the  said 
States,  or  their  citizens  and  inhabitants ;  and  that  the  Judi- 
ciaries of  the  several  States  shall  be  bound  thereby  in  their 
decisions,  anything  in  the  respective  laws  of  the  individual 
States  to  the  contrary  notwithstanding."  ^ 

The  sixth  resolution  was  apparently  a  mere  expression  of 
the  reason  for  the  adoption  of  the  seventh  resolution  which 
subsequently  became  Article  YIII  of  the  draft  and  Arti- 
cle VI  of  the  Constitution.  The  question,  therefore,  of  the 
possible  interruption  of  harmony  of  the  Union  in  its  rela- 
tions with  foreign  powers  must  be  regarded  as  a  powerful 
factor  in  construing  Article  YI  as  it  was  finally  adopted. 

§  184.  First  draft  submitted ;  treaties  to  be  supreme 
law  ;  August  6tli. — On  August  6th  the  Committee  of  De- 
tail reported  the  first  draft  of  the  Constitution,  in  which  the 
sixth  and  seventh  resolutions  of  July 26th  were  embodied  as: 
Article  VIII :  "The  acts  of  the  Legislature  of  the  United 
States  made  in  pursuance  of  this  Constitution,  and  all  trea- 
ties made  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  several  States,  and  of  their  citizens 
and  inhabitants  ;  and  the  Judges  in  the  several  States  shall 
be  bound  thereby  in  their  decisions,  anything  in  the  Consti- 
tutions or  laws  of  the  several  States  to  the  contrary  not- 
withstanding." 

Section  1,  Article  IX  of  the  first  draft  of  the  Committee 
of  Detail  was  as  follows  :  "  The  Senate  of  the  United  States 


§183.  1-1222,     (The  italics  in  Resolution 

1  Madison  Papers,  vol.  II,  pp.  1221 1  No.  6  are  the  author's. ) 

315 


§  185  TREATY-MAKING  POWER  OP  THE  U.  S.        [CH.  VI. 

shall  have  power  to  make  treaties,  and  to  appoint  ambassa- 
dors, and  judges  of  the  Supreme  Court." 

Article  X  which  provitled  for  the  powers  and  duties  of 
the  Executive,  did  not  clothe  him  with  an}''  power  or  duties 
as  to  making  treaties,  except  that  he  should  receive  Ambas- 
sadors, and  might  correspond  with  the  supreme  executives  of 
the  several  States ;  nor  w^as  any  direct  provision  made  in 
Article  XI,  which  related  to  the  judiciarv,  by  which  any- 
special  jurisdiction  in  regard  to  treaties  was  giv^en  to  the  Su- 
preme Court  or  national  judiciary. 

Article  XIII  of  the  draft  was  as  follows :  "  Xo  State, 
without  the  cbusent  of  the  Legislature  of  the  United  States, 
.  .  .  shall  keep  troops  or  ships  of  war  in  time  of  peace ; 
nor  enter  into  any  agreement  or  compact  with  another  State, 
or  with  any  foreign  power ;  nor  engage  in  an}^  war,  unless 
it  shall  be  actually  invaded  by  enemies,  or  the  danger  of  in- 
vasion be  so  imminent  as  not  to  admit  of  a  delay  until  the 
Legislature  of  the  United  States  can  be  consulted."  Arti- 
cle XII  also  contained  a  prohibition  against  any  State  enter- 
ing into  any  treaty,  alliance  or  confederation,  or  granting 
any  title  of  nobilit3\^ 

§  1S5.  Discussion  of  draft ;  Colonel  Mason's  views ;  Au- 
gust 15tli. — The  draft  was  submitted  to  the  Convention 
and  was  discussed  section  by  section ;  the  treaty  clause  was 
not  reached  until  August  23d  ;  but  on  the  15th  in  a  discus- 
sion regarding  the  various  relative  powers  of  the  Senate 
and  the  House  of  Representatives,  Colonel  Mason  declared 
that  he  was  extremely  anxious  to  take  away  as  much  power 
as  he  could  from  the  Senate,  which  in  his  opinion,  "  could 
already  sell  the  whole  country  by  means  of  treaties ; "  Mr. 
Mercer  also  contended  that  the  Senate  ought  not  to  have  the 
power  of  making  treaties,  as  this  power  belonged  to  the  Ex- 


§184. 

iThe  draft  appears  at  pp.  1234- 
1242,  Madison  Papers,  vol.  II;  Arti- 
cles VIII  and  IX  at  p.  1234;  Arti- 
cle X  at  p.  1236;  Article  XI  at  p. 
1238;  Articles  XII  and  XIII  at  p. 
1239. 

For  the  development  and  changes 
of  this  and  other  articles  of  the 

316 


Constitution,  see  The  Growth  of 
the  Federal  Constitution  in  the 
Federal  Convention  of  1787;  an  ef- 
fort to  trace  the  origin  and  devel- 
opment of  each  separate  clause 
from  its  first  suggestion  in  that 
body  to  the  form  finally  ad()])ted, 
by  'William  M.  Meigs,  2d  edition, 
Philadelphia  and  London,  1901. 


CH.  VI.] 


THE  FEDERAL  CONVENTION. 


185 


ecutive ;  he  added  that  treaties  should  not  be  final  so  as  to 
have  the  effect  of  altering  the  laws  of  the  land  until  ratified 
by  the  legislative  authority,  as  was  the  case  in  Great  Britain, 
and  he  called  attention  to  the  fact  at  this  time,  so  that  his 
friends  might  fully  appreciate  the  importance  of  the  clause.^ 


§185. 

1  Wednesday,  August  15th,  In 
Convention.     .     .     . 

"  Article  6,  section  12,  was  then 
taken  up. 

"  Mr.  Strong  moved  to  amend  the 
article  so  as  to  read,  'Each  House 
shall  possess  the  right  of  originat- 
ing all  bills,  except  bills  for  raising 
money  for  the  purposes  of  revenue, 
or  for  appropriating  the  same,  and 
for  fixing  the  salaries  of  the  officers 
of  the  Government,  which  shall 
originate  in  the  House  of  Represen- 
tatives; but  the  Senate  mny  pro- 
pose or  concur  with  amendments  as 
in  other  cases.' 

"  Colonel  Mason  seconds  the  mo- 
tion. He  was  extremely  earnest  to 
take  this  power  from  the  Senate, 
who  he  said  could  already  sell  the 
whole  country  by  means  of  trea- 
ties. 

"  Mr.  Gorham  urged  the  amend- 
ment as  of  great  importance.  Tlie 
Senate  will  first  acquire  the  habit 
of  preparing  money-bills,  and  then 
the  practice  will  grow  into  an  ex- 
clusive right  of  preparing  them. 

"  Mr.  Gouverneur  Morris  opposed 
it,  as  unnecessary  and  inccmven- 
ient. 

"Mr.  Williamson.  Some  think 
this  restriction  on  the  Senate  essen- 
tial to  liberty;  others  think  it  of  no 
importance.  Why  should  not  the 
former  be  indulged?  He  was  for 
an  efficient  and  stable  government; 
but  many  would  not  strengthen  tlie 
Senate,  if  not  restricted  in  the  case 
of  money-bills.  The  friends  of  the 
Senate,  would  therefore,  lose  more 


than  they  would  gain,  by  refusing 
to  gratify  the  other  side.  He  moved 
to  postpone  the  subject,  till  the 
powers  of  the  Senate  should  be  gone 
over. 

"Mr.  Rutledge  seconds  the  mo- 
tion. 

"  Mr.  Mercer  should  hereafter  be 
against  returning  to  a  reconsidera- 
tion of  this  section.  He  contended 
(alluding  to  Mr.  Mason's  observa- 
tions) that  the  Senate  ought  not  to 
have  the  power  of  treaties.  This 
power  belonged  to  the  Executive 
department;  adding,  that  treaties 
would  not  be  final,  so  as  to  alter 
the  laws  of  the  land,  till  ratified  by 
legislative  authority.  This  was  the 
case  of  treaties  in  Great  Britain; 
particularly  the  late  treaty  of  com- 
merce with  France. 

"  Colonel  Mason  did  not  say  that 
a  treaty  would  repeal  a  law;  but 
that  the  Senate,  by  means  of  trea- 
ties, might  alienate  territory,  etc., 
without  legislative  sanction.  The 
cessions  of  the  British  Islands  in 
the  West  Indies,  by  treaty  alone, 
were  an  example.  If  Spain  should 
possess  herself  of  Georgia,  there- 
fore, the  Senate  might  I)y  treaty  dis- 
member the  Union.  He  wished  the 
motion  to  be  decided  now,  that  the 
friends  of  it  might  know  how  to 
conduct  themselves. 

"  On  the  question  for  postponing 
section  12,  it  passed  in  the  affirma- 
tive,— 

"New  Hampshire,  Massachu- 
setts, Virginia,  North  Carolina, 
South  Carolina,  Georgia,  aye — 6; 
Connecticut,  New  Jersey,  Pennsyl- 

317 


§  186  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  VI. 

^  IS(').  Treaties  the  supreme  law ;  resolutions  regarding 
same  ;  August  23(1. — AVhen  Article  VIII  of  the  draft  was 
reached  on  August  23d  there  does  not  appear  to  have  been 
any  discussion  in  regard  to  it ;  a  resolution  offered  by  Mr, 
Rutledge  was  adopted  neni.  con.  amending  it  but  practically 
■without  anv  chau2:e  so  as  to  read  as  follows: 

''  This  Constitution,  and  the  laws  of  the  United  States 
made  in  pursuance  thereof,  and  all  the  treaties  made  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law 
of  the  several  States  and  of  their  citizens  and  inhabitants; 
and  the  Judges  of  the  several  States  shall  be  bound  thereby 
in  their  decisions,  anything  in  the  Constitutions  or  laws  of 
the  several  States  to  the  contrary  notwithstanding."  ^ 

Mr,  Morris  then  offered  a  resolution  which  was  also  agreed 
to  nem.  con.,  to  strike  out  of  the  eighteenth  clause  of  Sec- 
tion 1  of  Article  YII  of  the  draft,  the  power  of  the  United 
States  "  to  enforce  treaties,"  as  being  superfluous,  for  since 
the  treaties  were  to  be  laws,  the  power  to  enforce  them  al- 
ready existed.^ 

A  motion  was  also  similarly  adopted  to  alter  that  part  of 
the  same  clause  of  Section  1,  Article  YII,  which  authorized 
Congress  to  call  forth  the  aid  of  the  militia  to  enforce  treaties 
after  the  words  "  laws  of  the  Union,"  on  the  ground  that  by 
the  adoption  of  Article  YIII  the  words  treaties  were  super- 
fluous, inasmuch  as  they  were  to  be  the  laws  of  the  Union.^ 

In  the  second  draft  some  of  the  provisions  were  so  trans- 
posed that  Article  YIII  subsequently  became  and  remained 
Article  YI. 

]\[r,  Finckney  also  moved  to  amend  Section  1  of  Arti- 
cle YII,  by  adding  that  Congress  should  not  only  have  the 
right  to  make  all  laws  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  as  well  as  all  other  powers 
vested  by  the  Constitution  in  the  government  of  the  Uni-. 
ted  States,  or  in  any  department  or  office  thereof,  but  that 
Congress  should  also  have  the  additional  power  to  "  nega- 
tive all  laws  passed  by  the  several  States  interfering,  in  the 


vania,  Delaware,  Maryland,  no — 5." 
Madison  Papers,  vol.  Ill,  pp.  1330- 
1332. 

318 


§186. 

1  Madison  Papers,  vol.  III,  p.  1408. 

2  Idem,  p.  1409. 
8  Idem,  p.  1409. 


CH, 


VI.] 


THE   FEDERAL   CONVENTION. 


§187 


opinion  of  the  Legislature,  with  the  general  interests  and 
harmony  of  the  Union,"*  Mr.  Roger  Sherman  expressed 
his  opinion  that  this  was  unnecessary,  because  the  laws 
(which,  as  we  have  already  seen,  include  treaties)  of  the 
Central  Government  were  supreme  and  paramount  to  the 
State  laws  according  to  the  plan  as  it  then  stood ;  a  motion 
to  commit  was  lost,  and  Mr.  Pinckney's  resolution  was  voted 
down.^ 

Article  IX  giving  the  Senate  power  to  make  treaties  and 
appoint  ambassadors  and  Judges  of  the  Supreme  Court  was 
then  taken  up  ;  the  convention  disagreed  in  several  respects, 
and  after  an  equally  divided  vote  its  consideration  was  post- 
poned ;  subsequently  it  was  referred  to  the  Committee  of 
Eleven.^ 

§  187.  Debate  as  to  ratification  of  treaties ;  Au- 
gust 23d. — The  debate  of  August  23d  as  to  the  ratification 
of  treaties  continued,  Messrs.  Madison,  Morris,  Gorham,  Wil- 
son, Dickinson,  Randolph  and  Dr.  Johnson  taking  part 
therein ;  Mr.  Morris  wished  a  saving  clause  inserted  to  the 
effect  that  "no  treaty  should  be  binding  on  the  United 
States  which  is  not  ratijfied  by  law."  ^     It  became  apparent 


*  Idem,  p.  1409. 

^  Idem,  p.  1410. 

^  Idem,  pp.  1412  et  seq.,  and  see 
quotation  at  length  under  §  187, 
post. 

§187. 

1  Thursday,  August  23d,  In  Con- 
vention. 

"  Article  9,  Sec.  1,  being  resumed, 
to  wit:  'The  Senate  of  the  United 
States  shall  have  power  to  make 
treaties,  and  to  appoint  Ambassa- 
dors, and  Judges  of  the  Supreme 
Court' — 

"  Mr.  Madison  obsei'ved,  that  the 
Senate  represented  the  States 
alone;  and  that  for  this  as  well  as 
other  obvious  reasons,  it  was  proper 
that  the  President  should  be  an 
agent  in  treaties. 

"  Mr.  Gouverneur  Morris  did  not 
know  that  he  should  agree  to  refer 
the  making  of  treaties  to  the  Senate 


at  all,  but  for  the  present  would 
move  to  add,  as  an  amendment  to 
the  section,  after  'tieaties,'  the 
following:  '  but  no  treaty  shall  be 
bindiu<]j  on  the  United  States  which 
is  not  ratified  by  law.' 

"Mr.  Madison  sujjgested  the  in- 
convenience of  requiring  a  legal 
ratification  of  treaties  of  alliance, 
for  the  purposes  of  war,  etc.,  etc. 

"Mr.  Gorham.  Many  other  dis- 
advantages must  be  experienced, 
if  treaties  of  peace  and  all  negotia- 
tions are  to  be  jn'eviously  ratified; 
and  if  not  previously,  the  ministers 
would  be  at  a  loss  how  to  proceed. 
Wliat  would  be  the  case  in  Great 
Britain,  if  the  King  were  to  proceed 
in  this  manner  ?  American  minis- 
ters must  go  abroad  not  instructed 
by  the  same  authority  (as  will  be 
the  case  with  other  ministers) 
which  is  to  ratify  their  proceedings. 

319 


§187 


TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  VI. 


that  the  Convention  was  not  satisfied  that  the  Senate  should 
Mialce  treaties;  it  was,  therefore,  referred  back  to  a  Cora- 


*'Mr.  Gouverneur  Morris.  As  to 
treaties  of  alliauce,  they  will  oblige 
foreign  powers  to  send  their  minis- 
ters here,  the  very  thing  we  slioulcl 
wish  for.  Snch  treaties  could  not 
be  otherwise  made,  if  his  amend- 
ment should  succeed.  In  general 
he  was  not  solicitous  to  multiply 
and  facilitate  treaties.  He  wished 
none  to  be  made  with  Great  Britain, 
till  she  should  be  at  war.  Then  a 
good  bargain  might  be  made  with 
her.  So  with  other  foreign  powers. 
The  more  difficulty  in  making  trea- 
ties, the  more  value  will  be  set  on 
them. 

"Mr.  Wilson.  In  the  most  impor- 
tant treaties,  the  King  of  Great 
Britain,  being  obliged  lo  resort  to 
Parliament  for  the  execution  of 
them,  is  under  the  same  fetters  as 
the  amendment  of  Mr.  Morris's 
will  impose  on  the  Senate.  It  was 
refused  yesterday  to  permit  even 
the  Legislature  to  lay  duties  on 
exports.  Under  the  clause  without 
the  amendment,  the  Senate  alone 
can  make  a  treaty  requiring  all  the 
rice  of  South  Carolina  to  be  sent 
to  some  one  particular  port. 

"Mr.  Dickinson  concurred  in  the 
amendment,  as  most  safe  and 
proper,  though  he  was  sensible  it 
was  unfavorable  to  the  little  States, 
which  would  otherwise  have  an 
equal  shnre  in  making  treaties. 

"  Doctor  Johnson  thought  there 
was  something  of  solecism  in  say- 
ing, that  the  acts  of  a  minister  with 
plenipotentiary  powers  from  one 
body  should  depend  for  ratification 
on  another  body.  The  example  of 
the  King  of  Great  Britain  was  not 
parallel.  Full  and  complete  power 
was  vested  in  him.  If  the  Parlia- 
ment should   fail   to   provide   the 

320 


necessary  means  of  execution,  the 
treaty  would  be  violated. 

"Mr.  Gorham,  in  answer  to  Mr. 
Gouverneur  Morris,  said,  that 
negotiations  on  the  spot  were  not 
to  be  desired  by  us;  especially  if 
the  whole  Legislature  is  to  have 
anything  to  do  with  treaties.  It 
will  be  generally  influenced  by  two 
or  three  men,  who  will  be  corrupted 
by  the  ambassadors  here.  In  such 
a  government  as  ours,  it  is  neces- 
saiy  to  guard  against  the  Govern- 
ment itself  being  seduced. 

"Mr.  Kandolph,  observing  that 
almost  every  speaker  had  made 
objections  to  the  clause  as  it  stood, 
moved,  in  order  to  a  further  con- 
sideration of  the  subject,  that  the 
motion  of  Mr.  Gouverneur  Morris 
should  be  postponed;  and  on  this 
question,  it  was  lost,  the  Slates 
being  equally  divided, 

"New  Jersey,  Pennsylvania, Dela- 
ware, Maryland,  Virginia,  aye — 5; 
Massachusetts,  Connecticut,  North 
Carolina,  South  Carolina,  Georgia, 
no — 5. 

"  On  Mr.  Gouverneur  Morris's 
motion, — 

"Pennsylvania,  aye — 1;  Massa- 
chusetts, Connecticut,  New  Jersey, 
Delaware,  Maryland,  Virginia, 
South  Carolina,  Georgia,  no — 8; 
North  Carolina,  divided. 

"  The  several  clauses  of  Article  9, 
Sec.  1,  were  then  separately  post- 
pimed,  after  inserting,  'and  other 
public  ministers,'  next  after  'am- 
bassadors.' 

"  Mr.  Madison  hinted  for  consider- 
ation whether  a  distinction  might 
not  be  made  between  different 
sorts  of  treaties;  allowing  the 
President  and  Senate  to  make  trea- 
ties eventual,  and  of  alliance  for 


CH.  VI.]        THE  FEDERAL  CONVENTION.  §  189 

mittee  of  Five ;  it  was,  however,  apparently  finally  intrusted 
to  the  Committee  of  Eleven,  which  included  certain  modifi- 
cations as  to  this  subject  in  its  report  on  September  4th, 
which  will  be  hereafter  alluded  to." 

§  188.  Amendments  to  draft  as  to  treaties ;  August  25th. 
— On  August  25th,  several  days  after  Article  YIII  of  the 
draft,  afterwards  Article  YI  of  the  Constitution,  had  been 
unanimously  adopted,  Mr.  Madison,  seconded  by  ^h\  Morris, 
ofi"erec]  a  resolution,  which  was  adopted  ne7n.  con.,  that  the 
article  should  be  reconsidered  by  the  insertion  of  the  words, 
"  or  which  shall  be  made ; "  this  was  done  so  as  to  obviate  all 
doubt  concerning  pre-existing  treaties,  by  making  the  words 
"all  treaties  made"  to  refer  to  them,  as  the  words  inserted 
would  refer  to  future  treaties.^  The  attention  of  the  Con- 
vention was  thus  affain  especially  called  to  the  power  which 
Mr.  Mason  had  already  said  was  great  enough  "to  sell  the 
Union,"  ^  and  the  delegates  were  fully  advised  that  no  mat- 
ter how  great  the  power  might  be,  it  related  not  only  to  the 
treaties  already  made  by  the  Congress  of  the  Confederation, 
but  to  every  one  that  might  thereafter  be  made  and  ratified. 

§  189.  Jurisdiction  of  Suiireme  Court  over  treaty  cases; 
Senate  to  ratify  treaties  ;  September  4tli-10th. — When  the 
articles  relating  to  the  power  of  the  Supreme  Court  were 
discussed,  on  motion  of  Mr.  Rutledge,  an  amendment  was 
unanimously"  adopted  giving  that  Court  jurisdiction  in  re- 
gard to  all  treaties  made  by  the  United  States,  that  branch  of 
its  jurisdiction  having  apparently  been  overlooked  b}^  the 
Committee  of  Detail.^ 

On  September  Ith  the  Committee  of  Eleven,  consisting  of 
one  member  for  every  State  then  represented,  made  a  report 
in  which  a  number  of  matters  on  which  the  Convention  had 
disagreed  were  disposed  of  by  modified  clauses  to  be  inserted 
at  their  proper  place  in  the  Constitution  as  already  framed. 


limited  terms,  and  requiring  the 
coucurreuce  of  the  whole  Legisla- 
ture in  other  treaties. 

"The  first  Section  of  Article  9, 
was  finally  referred,  nem.  con.,  to 
the  Committee  of  five,  and  the 
House  then  adjourned."  Madison 
Papers,  vol.  Ill,  pp.  1412-1415. 

21  321 


2  See  §  189,  note  2  on  p.  322,  post. 
§188. 

1  Madisou  Papers,  vol.  Ill,  p.  1430. 
''  See  §  185,  p.  317,  ante. 
§189. 

^  Madison   Papers,  Vol.  III.,    p. 
1439. 


§189 


TREATY-MAKING  POWER  OF  THE  U.  S.         [CII.  VI. 


The  seventh  reeoiniueiukitioii  provided,  that  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate,  should 
make  treaties,  thus  returning  to  Mr.  Hamilton's  original 
suggestion,  with  the  limitation,  however,  that  no  treaty 
should  be  made  without  the  consent  of  two  thirds  of  the 
members  present.^  Some  of  the  members  thought  that  the 
negotiation  of  treaties  should  be  intrusted  to  the  executive 
aloue.^    After  some  discussion,  on  September  6th,*  as  to  the 


•  Tuesday,  September  4tli,  In 
Convention.  "  Mr.  Biearly,  from 
the  Committee  of  eleven,  made  a 
further  partial  Report  as  follows: 

"  The  Committee  of  eleven,  to 
whom  sundry  resolutions,  etc., 
were  referred  on  the  thirty-first  of 
August,  report,  that  in  their  opin- 
ion the  following  additions  and 
alterations  should  be  made  to  the 
Report  before  the  Convention,  viz : 

"  1.  The  first  clause  of  Article  7, 
Section  1,  to  read  as  follows:  '  The 
Legislature  shall  have  power  to  lay 
and  collect  taxes,  duties,  imposts 
and  excises,  to  pay  the  debts  and 
provide  for  the  common  defence 
and  general  welfare  of  the  United 
States.'  .  .  .  7.  Section 4,  'The 
President,  by  and  with  the  advice 
and  consent  of  the  Senate,  shall 
have  power  to  make  treaties;  and 
he  shall  nominate,  and,  by  and  with 
the  advice  and  consent  of  the 
Senate,  shall  appoint  ambassadors, 
and  other  public  ministers.  Judges 
of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States  whose 
appointments  are  not  otherwise 
herein  provided  for.  But  no  treaty 
shall  be  made  without  the  consent 
of  two-thirds  of  the  members  pres- 
ent.'"  Madison  Papers,  Vol.  Ill, 
pp.  1485-1488. 

3  "The  negotiation  of  treaties 
was  obviously  a  function  that 
should  be  committed  to  the  execu- 
tive   alone.      But   a   treaty  might 

322 


undertake  to  dismember  a  state  of 
part  of  its  territory,  or  might  other- 
wise affect  its  individual  interests; 
and  even  where  it  concerned  only 
the  general  interests  of  all  the 
states,  there  was  a  great  unwilling- 
ness to  intrust  the  treaty-making 
power  exclusively  to  the  president. 
Here  the  states,  as  equal  political 
sovereignties,  were  unwilling  to  re- 
lax tlieir  hold  upon  the  general 
government;  and  the  result  was 
that  provision  of  the  Constitution 
which  makes  the  consent  of  two- 
thirds  of  the  Senators  present 
necessary  to  the  ratification  of  a 
treaty."  Curtis'  Constitutional 
History  of  the  United  States,  vol.  I, 
p.  468. 

*  Thursday,  September  6th,  In 
Convention. 

"Mr.  Wilson  said,  that  he  had 
weighed  carefully,  the  Report  of 
the  Committee  for  remodelling 
the  constitution  of  the  Executive; 
and  on  combining  it  with  other 
parts  of  the  plan,  he  was  obliged 
to  consider  the  whole  as  having 
a  dangerous  tendency  to  aristoc- 
racy; as  throwing  a  dangerous 
power  into  the  hands  of  the  Sen- 
ate. They  will  have,  in  fact,  the 
appointment  of  the  President,  and 
through  his  dependence  on  them, 
the  virtual  appointment  to  of- 
fices; among  others,  the  officers  of 
the  Judiciary  department.  They 
are  to  make  treaties ;  and  they  are 


CH.  VI.] 


THE  FEDERAL   CONVENTION. 


§189 


required  majority,  this  recommendation  was  adopted  on 
September  Ttli;^  but  on  the  following  day  the  matter  was 
reconsidered ;    there  was  an   active  debate  during   which 


to  try  all  impeacbments.  In  al- 
lowing them  thus  to  make  the  Ex- 
ecutive and  Judiciary  appoint- 
ments, to  be  the  court  of  impeach- 
ments, and  to  make  treaties  which 
are  to  be  laws  of  the  land,  the 
Legishitive,  Executive  and  Judi- 
ciary powers  are  all  blended  in  one 
branch  of  the  Government.  The 
power  of  making  treaties  involves 
the  case  of  subsidies,  and  here,  as 
an  additional  evil,  foreign  influence 
is  to  be  dreaded.  According  to  the 
plan  as  it  now  stands,  the  President 
will  not  be  the  man  of  the  people, 
as  he  ought  to  be;  but  the  minion 
of  the  Senate.  He  cannot  even  ap- 
point a  tide-waiter  without  the 
Senate.  He  had  always  thought 
the  Senate  too  numerous  a  body 
for  making  appointments  to  office. 
The  Senate  will,  moreover,  in  all 
probability,  be  in  constant  session. 
They  will  have  high  salaries.  And 
with  all  those  powers,  and  the 
President  in  their  interest,  they 
will  depress  the  other  branch  of  the 
Legislature,  and  aggrandize  them- 
selves in  proportion.  Add  to  all 
this,  that  the  Senate,  sitting  in  con- 
clave, can  by  holding  up  to  their 
respective  States  various  and  im- 
probable candidates,  contrive  so  to 
scatter  their  votes,  as  to  bring  the 
appointment  of  the  President  ulti- 
mately before  themselves.  Upon 
the  whole,  he  thought  the  new  mode 
of  appointing  the  President,  with 
some  amendments,  a  valuable  im- 
provement; but  he  could  never 
agree  to  purchase  it  at  the  price  of 
the  ensuing  parts  of  the  Report,  nor 
befriend  a  system  of  which  they 
made  a  part. 
"  Mr.Gouverneur  Morris  expressed 


his  wonder  at  the  observations  of 
Mr.  Wilson,  so  far  as  they  preferred 
the  plan  in  the  printed  Report,  to 
the  new  modification  of  it  before 
the  House;  and  entered  into  a  com- 
parative view  of  the  two,  with  an 
eye  to  the  nature  of  Mr.  Wilson's 
objections  to  the  last."  Madison 
Papers,  Vol.  Ill,  pp.  1.504-150G. 

o  Friday,  September  7th,  In  Con- 
vention. 

"The  fourth  section,  to  wit.: 
'  The  President,  by  and  with  the 
advice  and  consent  of  the  Senate, 
shall  have  power  to  make  treaties,' 
etc.,  was  then  taken  up. 

"Mr.  Wilson  moved  to  add,  after 
the  word  'Senate,'  the  words,  '  and 
House  of  Representatives.'  As 
treaties,  he  said,  are  to  have  the 
operation  of  laws,  they  ought  to 
have  the  sanction  of  laws  also. 
The  circumstance  of  secrecy  in 
the  business  of  treaties  formed 
the  only  objection;  but  this,  he 
thought,  so  far  as  it  was  inconsis- 
tent with  obtaining  the  legislative 
sanction,  Avas  outweighed  by  the 
necessity  of  the  latter. 

"Mr.  Sherman  thought  the  only 
question  that  could  be  made  was, 
whether  the  power  could  be  safely 
trusted  to  the  Senate.  He  thought 
it  could;  and  that  the  necessity  of 
secrecy  in  the  case  of  treaties  for- 
bade a  reference  of  them  to  the 
whole  legislature. 

"  Mr.  Fitzimmons  seconded  the 
motion  of  Mr.  AVilson;  and  on 
the  question, — Pennsylvania,  aye — 
1;  New  Hampshire,  Massachusetts, 
Connecticut,  New  Jersey,  Dela- 
ware, Maryland,  Virginia,  North 
Carolina,  South  Carolina,  Georgia, 
no— 10. 

323 


§  189 


TREATY-RLA.KING  POWER  OF  THE  U.  S.         [CH.  VI. 


vanous  ameiidiiieiits  were  offered  and  the  danger  of  the 
treaty-making  power  being  vested  in  too  small  a  coterie  was 
referred  to  as  a  probable  source  of  danger  by  several  mem- 


"  The  first  sentence,  as  to  making 
treaties,  was  then  agreed  to,  nem. 
con.     .     .     . 

"The fourth  section.  '  The  Pres- 
ident by  and  with  the  advice  and 
consent  of  the  Senate  shall  have 
power  to  make  treaties.  But  no 
treaty  sJiall  be  made  without  the 
consent  of  tico-thlrds  of  the  mem- 
bers present,'' — being  considered, 
and  the  last  clause  being  before 
the  House, — 

"  Mr.  Wilson  thought  it  objection- 
able to  requii-e  the  concurrence  of 
two-thirds,  which  puts  it  into  the 
power  of  a  minority  to  control  the 
will  of  a  majority. 

'•  Mr.  King  concurred  in  the  ob- 
jection; remarking  that  as  the  Ex- 
ecutive was  here  joined  in  the 
business,  there  was  a  check  which 
did  not  exist  in  Congress,  where 
the  concurrence  of  two-thirds  was 
required. 

"Mr.  Madison  moved  to  insert, 
after  the  word  'treaty,'  the  words 
'except  treaties  of  peace;'  allow- 
ing these  to  be  made  with  less  dif- 
ficulty than  other  treaties.  It  was 
agreed  to,  nem.  con. 

"  Mr.  Madison  then  moved  to 
authorize  a  concurrence  of  two- 
thirds  of  the  Senate  to  make  trea- 
ties of  peace,  without  the  con- 
currence of  the  President.  The 
President,  he  said,  would  necessa- 
rily derive  so  much  power  and 
importance  from  a  state  of  war, 
that  he  might  be  tempted,  if  au- 
thorized, to  impede  a  treaty  of 
peace. 

"  Mr.  Butler  seconded  the  mo- 
tion. 

"  Mr.  G-orham  thought  the  se- 
324 


curity  unnecessary,  as  the  means 
of  carrying  on  the  war  would  not 
be  in  the  hands  of  the  President, 
but  of  the  Legislature. 

"  Mr.  Gouverneur  Morris  thought 
the  power  of  the  President  in  this 
case  harmless;  and  that  no  peace 
ought  to  be  made  without  the  con- 
currence of  the  President,  who  was 
the  general  guardian  of  the  national 
interests. 

"Mr.  Butler  was  strenuous  for 
the  motion,  as  a  necessary  secur- 
ity against  ambitious  and  corrupt 
Presidents.  He  mentioned  the  late 
perfidious  policy  of  the  Stadtholder 
in  Holland;  and  the  artifices  of  the 
Duke  of  Marlborough  to  prolong 
the  war  of  which  he  had  the  man- 
agement. 

"  Mr.  Gerry  was  of  opinion  that 
in  treaties  of  peace  a  greater  rather 
than  a  less  proportion  of  votes  was 
necessary,  than  in  other  treaties. 
In  treaties  of  peace  the  dearest  in- 
terests will  be  at  stake,  as  the  fish- 
eries, territories,  etc.  In  treaties 
of  peace  also,  there  is  more  dan- 
ger to  the  extremities  of  the  conti- 
nent, of  being  sacrificed,  than  on 
any  other  occasion. 

"  Mr.  Williamson  thought  that 
treaties  of  peace  should  be  guarded 
at  least  by  requiring  the  same  con- 
currence as  in  other  treaties. 

"  On  the  motion  of  Mr.  Madison 
and  Mr.  Butler, — Maryland,  Stmth 
Carolina,  Georgia,  aye — .3;  New 
Hampshire,  Massachusetts,  Con- 
necticut, New  Jersey,  Pennsylva- 
nia, Delaware,  Virginia,  North 
Carolina,  no — 8. 

"  On  the  part  of  the  clause  con- 
cerning treaties,  amended  by  the 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§  189 


bers ;  the  report  of  the  committee  was  finally  readoptecl  as 
it  stood  on  September  Tth." 


exception  as  to  treaties  of  peace, — 
New  Hampshire,  Massachusetts, 
Connecticut,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South 
Carolina,  aye — 8;  New  Jersey, 
Pennsylvania,  Georgia,  no — 3." 
Madison  Papers,  Vol.  Ill,  pp. 
1518-1.522. 

6  Saturday,  September  8Lh,  In 
Convention. 

"  The  last  Report  of  the  Com- 
mittee of  Eleven  (see  the  fourth  of 
September)  was  resumed. 

"  Mr.  King  moved  to  strike  out 
the  exception  of  treaties  of  peace, 
from  the  general  clause  requiring 
two-thirds  of  the  Senate  for  mak- 
ing treaties. 

"  Mr.  Wilson  wished  the  requisi- 
tion of  two-thirds  to  be  struck  out 
altogether.  If  the  majority  can- 
not be  trusted,  it  was  a  proof,  as 
observed  by  Mr.  Gorham,  that  we 
were  not  fit  for  one  society. 

"  A  reconsideration  of  the  whole 
clause  was  agreed  to. 

"Mr.  Gouverneur  Morris  was 
against  striking  out  the  exception 
of  treaties  of  peace.  If  two-thirds 
of  the  Senate  should  be  required 
for  peace,  the  Legislature  will  be 
unwilling  to  make  war  for  that 
reason,  on  account  of  the  fisher- 
ies, or  the  Mississippi,  the  two 
great  objects  of  the  Union.  Be- 
sides, if  a  majority  of  the  Senate 
bo  for  peace,  and  are  not  allowed 
to  make  it,  they  will  be  apt  to  ef- 
fect their  purpose  in  the  more  dis- 
agreeable mode  of  negativing  the 
supplies  for  the  war. 

"  Mr.  Williamson  remarked,  that 
treaties  are  to  be  made  in  the 
branch  of  the  Government  where 
there  may  be  a  majority  of  the 
States,  without  a  majority  of  the 


people.  Eight  men  may  be  a  ma- 
jority of  a  quorum,  and  should  not 
have  the  power  to  decide  the  con- 
ditions of  peace.  There  would  be 
no  danger,  that  the  exposed  States, 
as  South  Carolina  or  Georgia,  would 
urge  an  improper  war  for  the  West- 
ern territory. 

"Mr.  Wilson.  If  two-thirds  are 
necessary  to  make  peace,  the  mi- 
nority may  perpetuate  war,  against 
the  sense  of  the  majority, 

"Mr.  Gerry  enlarged  on  the  dan- 
ger of  putting  the  essential  rights 
of  the  Union  in  the  hands  of  so 
small  a  number  as  a  majority  of 
the  Senate,  representing,  perhaps, 
not  one-fifth  of  the  people.  The 
Senate  will  be  corrupted  by  for- 
eign influence. 

"  Mr.  Sherman  was  against  leav- 
ing the  rights  established  by  the 
treaty  of  peace,  to  the  Senate ;  and 
m.oved  to  annex  a  proviso,  that  no 
such  rights  should  be  ceded  with- 
out the  sanction  of  the  Legisla- 
ture. 

"  Mr.  Gouverneur  Morris  sec- 
onded the  ideas  of  Mr.  Sherman. 
,  "Mr.  Madison  observed  that  it 
had  been  too  easy,  in  the  present 
Congress,  to  make  treaties,  al- 
though nine  States  were  required 
for  the  purpose. 

"  On  the  question  for  striking 
out  '  except  treaties  of  peace,' — 

"  New  Hampshire,  Massachu- 
setts, Connecticut,  Pennsylvania, 
Virginia,  North  Carolina,  South 
Carolina,  Georgia,  aye — 8;  New 
Jersey,  Delaware,  Maryland,  no — 3. 

"  Mr.  Wilson  and  Mr.  Dayton 
moved  to  strike  out  the  clause,  re- 
quiring two-thirds  of  the  Senate, 
for  making  treaties;  on  which, 
Delaware,  aye — 1;  New  Hampshire, 

325 


§190 


TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  VI. 


^  190.  CoiiiiiiittcM*  <o  make  linal  draft ;  Presideut  to  make 
treaties;  Kepleiiiber  10th  and  12th. — On  kSepleinlxr  loth, 

all  of  the  disputed  questions  having  been  discussed  and  settled, 
a  "  Committee  of  St^'le  and  Arrangement "  ^  was  appointed  to 

"Mr.  Madisou.     This  may  hap- 
pen to  any  quorum. 

"  On  the  question,  it  passed  in 


Massachusetts,  New  Jersey,  Penn- 
sylvania, Maryland,  Virginia,  North 
Carolina,  South  Carolina,  Georgia, 
no — 9;  Connecticut,  divided. 

"  Mr.  Rutledge  and  Mr.  Gerry 
moved  that  '  no  treaty  shall  be 
made  without  the  consent  of  two- 
thirds  of  all  the  members  of  the 
Senate,' — according  to  the  example 
in  the  present  Congress. 

"  Mr.  Gorham.  There  is  a  differ- 
ence in  the  case,  as  the  President's 
consent  will  also  be  necessary  in  the 
new  government. 

"  On  the  question, — 

"North  Carolina,  South  Caro- 
lina, Georgia,  aye — 3;  New  Hamp- 
shire, Massachusetts,  (Mr.  Gerry, 
aye),  Connecticut,  New  Jei'sey, 
Pennsylvania,  Delaware,  Maryland, 
Virginia,  no — 8. 

"Mr.  Sherman  moved  that  'no 
ti-eaty  shall  be  made  without  a  ma- 
jority of  the  whole  number  of  the 
Senate.' 

"  Mr.  Gerry  seconded  him. 

"  Mr.  Williamson.  This  will  be 
less  security  than  two-thirds,  as 
now  required. 

"Mr.  Sherman.  It  will  be  less 
embarrassing. 

"On  the  question,  it  passed  in 
the  negative, — 

"  Massachusetts,  Connecticut, 
Delaware,  South  Carolina,  Georgia, 
aye — 5;  New  Hampshire,  New  Jer- 
sey, Pennsylvania,  Maryland,  Vir- 
ginia, North  Carolina,  no — 6. 

"  Mr.  Madison  moved  that  a  quo- 
rum of  the  Senate  consist  of  two- 
thirds  of  all  the  members. 

"  Mr.  Gouverneur  Morris.  This 
will  put  it  in  the  power  of  one  man 
to  break  up  a  quorum. 

326 


the  negative, — 

"  Maryland,  Virginia,  North  Car- 
lina.  South  Carolina,  Georgia, 
aye — 5;  New  Hampshire,  Massa- 
chusetts, Connecticut,  New  Jer- 
sey, Pennsylvania,  Delaware,  no — 6. 

"Mr.  Williamson  and  Mr.  Gerry, 
moved  that  'no  treaty  should  be 
made  without  previous  notice  to 
the  members,  and  a  reasonable 
time  for  their  attending.' 

"On  the  question,  —  all  the 
States,  no;  except  North  Carolina, 
South  Carolina,  and  Georgia,  aye. 

"  On  a  question  on  the  clause  of 
the  Report  of  the  Committee  of 
eleven,  relating  to  treaties  by  two- 
thirds  of  the  Senate,— all  the  States 
were,  aye;  except  Pennsylvania, 
New  Jersey,  and  Georgia,  no. 

"Mr.  Gerry  moved,  that 'no  of- 
ficer shall  be  appointed  but  to  of- 
fices created  by  the  Constitution 
or  by  law.'  This  was  rejected  as 
unnecessary, — 

"  Massachusetts,  Connecticut, 
New  Jersey,  North  Carolina,  Geor- 
gia, aye — 5;  New  Hampshire,  Penn- 
sylvania, Delaware,  Maryland,  Vir- 
ginia, South  Carolina,  no  —  6." 
Madison  Papers.  Vol.  Ill,  pp. 
1.^.24-1528. 

§190. 

^In  chapter  XI  of  the  second 
volume  of  the  History  of  the  Con- 
stitution of  the  United  States  en- 
titled "The  Last  Days  of  the  Con- 
vention," Mr.  Bancroft  says,  in  re- 
gard to  this  committee,  pp.  207-209: 

"  The  committee  to  whom  the 
constitution  was  referred  for  the 


CH.  VT.] 


THE  FEDERAL   CONVENTION. 


§190 


make  the  final  draft.^  That  Committee  reported  on  Septem- 
ber 12th ;^  in  regard  to  treaties,  Section  2,  Article  II,  pro- 
vided that  the  President  should  have  the  "  power,  by  and  with 
the  advice  and  consent  of  the  Senate,  to  make  treaties,  pro- 
vided two  thirds  of  the  Senators  present  concur."  ^  Section  2, 
Article  III,  provided  that  the  judicial  power  of  the  United 


arrangement  of  its  articles  and  the 
revision  of  its  style  were  Johnson, 
Hamilton,  Gouverneur  Morris, 
Madison,  and  King.  The  final 
draft  of  the  instrument  was  written 
by  Gouverneur  Morris,  who  knew 
how  to  reject  redundant  and  equiv- 
ocal expressions,  and  to  use  lan- 
guage with  clearness  and  vigor; 
but  the  convention  itself  had  given 
so  minute,  long-continued,  and  oft- 
renewed  attention  to  every  phrase 
in  every  section,  that  there  scarcely 
remained  room  for  improvement 
except  in  the  distribution  of  its 
parts. 

"Its  first  words  are:  'We  the 
people  of  the  United  States,  in 
order  to  form  a  more  perfect  union, 
to  establish  justice,  ensure  domes- 
tic tranquillity,  provide  for  the 
common  defence,  promote  the  gen- 
eral welfare,  and  secure  the  bless- 
ings of  liberty  to  ourselves  and  our 
posterity,  do  ordain  and  establish 
this  constitution  for  the  United 
States  of  America.'  Here  is  no 
transient  compact  between  parties : 
it  is  the  institution  of  government 
by  an  act  of  the  highest  sovereignty ; 
the  decree  of  many  who  are  yet  one ; 
their  law  of  laws,  inviolably  su- 
preme, and  not  to  be  changed  ex- 
cept in  the  way  which  their  forecast 
has  provided. 

"The  names  of  the  thirteen 
States,  so  carefully  enumerated  in 
the  articles  of  confederation  and  in 
the  treaty  of  peace,  were  omitted, 
because  the  constitution  was  to  go 
into  effect  on    its   acceptance  by 


nine  of  them,  and  the  states  by 
which  it  would  be  ratified  could 
not  be  foreknown.  The  deputies 
in  the  convention,  representing  but 
eleven  states,  did  not  pretend  to 
be  '  the  people  ';  and  could  not  in- 
stitute a  general  government  in  its 
name.  The  instrument  which  they 
framed  was  like  the  report  of  a  bill 
beginning  with  the  words  'it  is  en- 
acted,' though  the  binding  enact- 
ment awaits  the  will  of  the  legisla- 
ture; or  like  a  deed  drawn  up  by 
an  attorney  for  several  parties,  and 
awaiting  its  execution  by  the  prin- 
cipals themselves.  Only  by  its  ac- 
ceptance could  the  words  '  we  the 
people  of  the  United  States'  be- 
come words  of  truth  and  power. 

"The  phrase  'general  welfare,' 
adopted  from  the  articles  of  confed- 
eration, though  seemingly  vague, 
was  employed  in  a  rigidly  restric- 
tive sense  to  signify  '  the  concerns 
of  the  union  at  large,  not  the  par- 
ticular policy  of  any  state.'  The 
word  'national'  was  excluded  fiom 
the  constitution,  because  it  might 
seem  to  present  the  idea  of  the 
union  of  the  people  without  at  the 
same  time  bringing  into  view,  that 
the  one  republic  was  formed  out  of 
many  states.  Toward  foreign  pow- 
ers the  country  presented  itself  as 
one  nation.  The  arrangement  of 
the  articles  and  sections  is  fault- 
less; the  style  of  the  whole  is 
nearly  so." 

^  Madison  Papers,  vol.  Ill,  p.  1542. 

3  Idem,  p.  1543. 

*  Idem,  p,  1555. 

327 


§190 


TREATY-MAKING  POWER  OF  THE  U.  S.         [CH.  VI. 


States  should  extend  to  "all  cases,  both  in  law  and  equity, 
arising  under  this  Constitution,  the  la\Ysof  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  au- 
thority."^ Article  VI  composed  of  a  single  section,  was  di- 
vided into  three  clauses,  the  second  of  which  related  to  trea- 
ties and  was  as  follows :  "  This  Constitution,  and  the  laws  of 
the  United  States  which  shall  be  made  in  pursuance  thereof ; 
and  all  treaties  made,  or  which  shall  be  made,  under  the 
authorit}^  of  the  United  States,  shall  be  the  supreme  law  of 
the  land ;  and  the  judges  in  ever}^  State  shall  be  bound 
thereby,  anything  in  the  Constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding."  ® 

The  power  of  Congress,  by  Section  8  of  Article  I,  included 
the  right  "  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in  the  Gov- 
ernment of  the  United  States,  or  in  any  department  or  offi- 
cer thereof."  "  Section  10  of  the  same  Article  provided  that 
without  the  consent  of  Congress  no  State  should  "enter 
into  any  agreement  or  compact  with  another  State,  or  with 
any  foreign  power."  ^ 

in  his  Constitutional  History,  Mr.  George  Ticknor  Curtis 
has  summarized  the  reasons  for  vesting  the  treaty-making 
power  in  the  President,  with  the  limitations  thereover  in- 
volved in  the  necessary  two  thirds  ratification;  they  are 
quoted  in  the  notes  to  this  section.^ 

the  mode  in  which  a  war  was  to  be 


^  Idem,  p.  1556. 

6  Idem,  p.  1559. 

''Idem,  p.  1551. 

^Idem,  p.  1552. 

9  "  The  power  to  make  treaties, 
which  had  been  given  to  the  Sen- 
ate by  the  committee  of  detail,  and 
which  was  afterwards  transferred 
to  the  president,  to  be  exercised 
with  the  advice  and  consent  of  two 
thirds  of  tlie  senators  present,  was 
thus  modified  on  account  of  the 
changes  which  tlie  plan  of  govern- 
ment had  undergone,  and  which 
have  been  previously  explained. 
The  power  to  declare  war  havin^r 
been  vested  in  the  whole  legisla- 
ture, it  was  necessary  to  provide 

328 


terminated.  As  the  president  was 
to  be  the  organ  of  communication 
with  other  governments,  and  as  he 
would  be  the  general  guardian  of 
the  national  interests,  the  negotia- 
tion of  a  treaty  of  peace,  and  of  all 
other  treaties,  was  necessarily  con- 
fided to  him.  But  as  treaties  would 
not  only  involve  the  general  inter- 
ests of  the  naticm,  but  might  touch 
the  particular  interests  of  individ- 
ual states,  and,  whatever  their 
effect,  were  to  be  part  of  the  su- 
preme law  of  the  land,  it  was  nec- 
essary to  give  to  the  senators,  as 
the  direct  representatives  of  the 
states,  a  concurrent  authority  with 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§191 


§  191.  Letter  to  Congress,  accompanying  Constitution 
as  to  ratification  by  tlie  people,  instead  of  by  legislatures 
of  the  States. — This  draft  of  the  Committee  on  Style  and 
Arrangement  Avas  accompanied  by  a  letter  submitting  the 
Constitution  to  the  consideration  of  the  people  of  the  United 


the  president  over  the  relations  to 
be  affected  by  them.  The  rule  of 
ratification  suggested  by  the  com- 
mittee to  whom  this  subject  was 
last  confided  was,  that  a  treaty 
might  be  sanctioned  by  two  thirds 
of  the  senators  present,  but  not  by 
a  smaller  number.  A  question  was 
made,  however,  and  much  consid- 
ered, whether  treaties  of  peace 
ought  not  to  be  subjected  to  a  dif- 
ferent rule.  One  suggestion  was, 
that  the  Senate  ought  to  have  power 
to  make  treaties  of  peace  without 
the  concurrence  of  the  jiresident, 
on  account  of  his  possible  interest 
in  the  continuance  of  a  war  from 
which  he  might  derive  power  and 
importance.  But  an  objection, 
strenuously  urged,  was  that,  if  the 
power  to  make  a  treaty  of  peace 
vrere  confided  to  the  Senate  alone, 
and  a  majority  of  two  thirds  of  the 
whole  Senate  were  to  be  required 
to  make  such  a  treaty,  the  difficulty 
of  obtaining  peace  would  be  so 
great  that  the  legislature  would  be 
unwilling  to  make  war  on  account 
of  the  fisheries,  the  navigation  of  the 
Mississippi,  and  other  important 
objects  of  the  Union.  On  the  otlier 
hand,  it  was  said  that  a  majority 
of  the  states  might  be  a  minority 
of  the  people  of  the  United  States, 
and  that  the  representatives  of  a 
minority  of  the  nation  ought  not 
to  have  power  to  decide  the  condi- 
tions of  peace. 

"The  result  of  these  various  ob- 
jections was  a  determination  on 
the  part  of  a  large  majority  of  the 
states  not  to  make  treaties  of  jjeace 


an  exception  to  the  rule,  but  to 
provide  a  uniform  rule  for  the  rati- 
fication of  all  treaties.  The  rule 
of  the  Confederation,  -which  had 
required  the  assent  of  nine  states 
in  Congress  to  every  treaty  or  alli- 
ance, had  been  found  to  work  great 
inconvenience;  as  any  rule  must  do 
which  should  give  to  a  minority  of 
states  power  to  control  the  foreign 
relations  of  the  countiy.  The  rule 
established  by  the  Constitution, 
while  it  gives  to  every  state  an  op- 
])ortunity  to  be  present  and  to  vote, 
requires  no  positive  quorum  of  the 
Senate  for  the  ratification  of  a 
treaty;  it  simply  demands  that  the 
treaty  shall  receive  the  assent  of 
two  thirds  of  all  the  members  who 
may  be  present.  The  theory  of 
the  Constitution  undoubtedly  is, 
that  the  president  represents  the 
people  of  the  United  States  gen- 
erally, and  the  senators  represent 
their  respective  states;  so  that,  by 
the  concurrence  which  the  rule 
thus  requires,  the  necessity  for  a 
fixed  quorum  of  the  states  is 
avoided,  and  the  operations  of  this 
function  of  the  government  are 
greatly  facilitated  and  simplified. 
The  adoption,  also,  of  thiit  part  of 
the  rule  wiiich  provides  that  the 
Senate  may  either  'advise  or  con- 
sent,' enables  that  body  so  far  to 
initiate  a  treaty  as  to  propose  one 
for  the  consideration  of  the  presi- 
dent— although  such  is  not  tiie  gen- 
eral practice."  Curtis'  Constitu- 
tional History  of  the  United  States, 
vol.  I,  pp.  .579-581. 

329 


§  192  TREATY-MAKINC   TOWEK  OF  THE  U.  S.         [CH.  VI. 

States,  and  stating,  in  the  following  words,  that  the  (jaestion 
of  the  governmental  powers  which  the  States  should  surren- 
der to,  and  vest  in,  the  General  Government  had  been  the  ob- 
ject of  great  consitleration : 

"  The  friends  of  our  country  have  long  seen  and  desired, 
that  the  power  of  making  war,  peace,  and  treaties ;  that  of 
levying  money,  and  regulating  commerce,  and  the  correspon- 
dent executive  and  judicial  authorities,  should  be  fully  and 
effectually  vested  in  the  general  government  of  the  Union. 
.  .  .  It  is  obviously  impracticable,  in  the  federal  govern- 
ment of  these  States,  to  secure  all  rights  of  independent  sov- 
ereignty to  each,  and  yet  provide  for  the  interest  and  safety 
of  all.  Individuals  entering  into  society  must  give  up  a  share 
of  liberty,  to  preserve  the  rest.  ...  In  all  our  deliber- 
ations on  this  subject,  we  kept  steadily  in  our  view  that  which 
appeared  to  us  the  greatest  interest  of  every  true  American, 
the  consolidation  of  our  union,  in  which  is  involved  our  pros- 
perity, felicity,  safety,  perhaps  our  national  existence."^ 

§  192.  Coustitution  adopted  ;  September  15th.— Even  af- 
ter the  Committee  on  Style  and  Arrangement  had  submitted 
what  was  supposed  to  be  the  final  draft,  there  were  several 
meetings,  in  which  the  report  was  discussed.  It  does  not 
appear,  however,  that  any  of  the  alterations  suggested  re- 
lated to  the  treat3^-making  power ;  on  September  15th  the 
Constitution,  as  amended,  -was  adopted  by  all  the  State  del- 
eo;ations,  although  some  of  the  individual  members,  includ- 
ing  Mr.  Geny,  Colonel  Mason  and  Mr.  Eandolph,^  stated  that 
they  would  withhold  their  names,  their  objections  as  stated 
did  not  relate  to  the  fact  that  the  treaty-making  power  was 
vested  in  the  Central  Government.'^  In  fact,  Mr.  Eandolph 
in  his  opening  remarks  had  referred  to  the  centralization  of 
the  treaty-making  power,  and  the  enforcement  of  treaty 
stipulations,  as  some  of  the  chief  grounds  for  lodging  more 
extensive  powers  in  the  Central  Government.^ 


§191. 

1  Madison  Papers,  vol.  Ill,  pp. 
1560-1561. 

§  192. 

^Mr.  Randolph,  however,  after- 
wards supported  the  Constitution 

330 


in  the  State  Convention  of  Virginia. 
See  §21.3,  posi. 

2  3Iadison  Papers,  vol.  Ill,   pp. 
1600-1603. 

3  See  §  171,  p.  300,  ante. 


Uri.  VI.]        THE  FEDERAL  CONVENTION".  §  194 

§  193.  Constitution  signed ;  Convention  adjourns ;  Sep- 
tember 1  T'tli. — The  Constitution  was  ordered  to  be  engrossed, 
the  Convention  adjourned  to  meet  again  on  September  ITth, 
when  the  engrossed  copy  was  presented  for  signature  by  Dr. 
Franklin,  but  was  read  by  Mr.  Wilson.^  At  the  last  moment 
there  was  one  change  made,  and  the  only  occasion  occurred 
on  which  the  President  of  the  Convention  is  reported  as  tak- 
ing actual  part  in  the  debates,  although  there  is  abundant 
evidence  that  the  part  taken  by  him  in  controlling  the  feel- 
ings of  the  members,  and  thus  preventing  any  final  rupture, 
was  an  all  important  element  in  the  success  of  the  Conven- 
tion. This  change  simply  made  thirty  thousand,  instead  of 
forty  thousand,  the  mininmm  basis  of  Congressional  repre- 
sentation.''^ The  members  then  proceeded  to  sign  the  Con- 
stitution as  engrossed,^  and  containing  all  the  provisions  as 
to  the  treaty-making  power  above  referred  to,  after  which 
the  Convention  was  dissolved  by  an  adjournment  sme  die} 

§  194.  What  the  Records  of  the  Convention  demonstrate. 
— The  records  of  the  Constitutional  Convention,  and  the 
provisions  adopted,  and  incorporated  in  the  Constitution, 
conclusively  demonstrate,  as  to  the  treaty-making  power: 

First:  That  the  unfortunate  condition  of  the  Union  when 
the  convention  convened  was  largely  due  to  the  fact,  that, 
although  the  Central  Government  possessed  power  to  make 
treaties,  it  did  not  possess  sufficient  power  to  enforce  thera, 
and  that  the  Convention  unanimously  agreed  that  it  would 
only  be  by  giving  to,  or  vesting  in,  the  Central  Government 
the  most  exclusive  powers,  both  as  to  the  making  and  en- 
forcing of  treaties,  and  also  by  entirely  debarring  the  States 
from  any  participation  therein,  that  the  foreign  relations  of 
the  Union  could  be  preserved,  and  the  nation  strengthened 
in  its  commercial  relations  which  were  then  assuming;  larger 
proportions  every  year. 

Second:  That  the  treaty-making  power  was  lodged  in  the 
Central  Government,  as  a  matter  of  course,  and  that  as  to 
that  element  there  was  unanimity  in  the  Convention. 


§193. 

iMiidison  Papers,  vol.  Ill,  p.  1596. 

2  idem,  p.  ir^no. 

^Idem,   p.    1605.     (Their  names 


appear  at  p.  1623. )     For  Constitu- 
tion in  full  see  pp.  519,  et  seq.,  post. 
*  Idem,  p.  1624. 

331 


§  195  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  VI. 

Third :  That  the  States  were  absolutely  prohibited  from 
exercising  an}-  treaty-making'  power  or  entering  into  foreign 
relations  of  any  kind,  and  that  the  Convention  was  also  a  unit 
on  this  point. 

Fourth:  That  the  treaty -making  power  was  vested  in  the 
Central  Government  without  any  limitation  whatever,  and 
not  only  were  no  limitations  suggested,  but  the  wide  scope 
of  the  power  was  fully  appreciated  even  to  the  extent  of 
"  selling  the  Union."  ^ 

F'ifth:  That  the  only  restraints  placed  upon  the  treaty- 
making  power  were  as  to  the  method  in  which  treaties  must 
be  made  and  ratified,  and  that  those  restrictions  related  only 
to  the  method  of  exercising  the  power,  and  not  to  its  scope 
or  its  supremacy. 

Sixth :  That  the  Convention  was  unanimous  on  the  point 
that  all  provisions  of  treaties  must  be  enforced  for  the  sake 
of  the  national  honor,  and  that  the  Central  Government  must 
have  the  power  to  enforce  them,  and  to  such  end  all  treaties, 
as  well  as  the  appropriate  legislation  to  make  them  effectual, 
must  be  superior  to  the  constitutions  and  laws  of  the  several 
States,  and  binding  upon  all  the  judge,s,  as  was  expressed  in 
Article  \1  of  the  Constitution. 

g  195.  Ratification  of  the  Constitution  by  tlie  people; 
Madison's  views. — During  the  debates  the  question  of  the 
method  of  ratification  of  the  Constitution — whether  by  the 
State  Legislatures  or  by  the  people — had  been  seyeral  times 
discussed.  Mr.  Madison  declared  as  early  as  July  23d  that 
the  State  Legislatures  were  incompetent  to  ratify  the  pro- 
posed changes  in  the  Articles  of  Confederation  as  they  would 
make  essential  inroads  on  the  State  Constitutions ;  and  that 
although  the  Constitutions  of  some  of  the  States  might  have 
given  the  power  to  concur  in  confederations,  certainly  some 
of  the  States  had  not  done  so,  and  in  those  cases  the  ratifica- 
tion must  necessarily  be  obtained  from  the  people  themselves. 
He  considered  the  difference  between  a  system  founded  on 
Legislatures  only,  and  one  founded  on  the  consent  of  the 
people,  to  be  the  true  difference  between  a  league,  or  treaty, 
and  a  Constitution ;  he  urged,  by  all  means,  that  the  States 

§194. 

iSee  §185,  p.  317,  ante. 

332 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§195 


by  Conventions,  and  not  by  their  Legislatures,  should  ratify 
the  Constitution  in  order  to  make  it  binding  upon  all  the 
people.^ 

Mr.  Madison's  wise  and  prudent  counsel  prevailed ;  the 


§195. 

1  Monday,  July  23d,  In  Conven- 
tion.    .     .     . 

The  nineteenth  Resolution  (of 
the  Committee  of  the  Whole)  refer- 
ring the  new  Constitution  to  As- 
semblies to  be  chosen  by  the  people, 
for  the  express  purpose  of  ratifying 
it,  was  next  taken  into  considera- 
tion. 

"  Mr.  Ellsworth  moved  that  it  be 
referred  to  the  Legislatures  of  the 
States  for  ratification.  Mr.  Pater- 
son  seconded  the  motion. 

"  Colonel  Mason  considered  a 
reference  of  the  plan  to  the  author- 
ity of  the  people,  as  one  of  the  most 
important  and  essential  of  the 
Resolutions.  .  .  .  Mr.  Ran- 
dolph; .  .  .  It  is  of  great  im- 
portance, therefore,  that  the  con- 
sideration of  this  subject  should  be 
transferred  from  the  Legislatures, 
where  this  class  of  men  (local 
demagogues)  have  their  full  influ- 
ence, to  a  field  in  which  their  ef- 
forts can  be  less  mischievous.  It 
is  moreover  worthy  of  considera- 
tion, that  some  of  the  States  are 
averse  to  any  change  in  their  Con- 
stitution, and  will  not  take  the 
requisite  steps,  unless  expressly 
called  upon,  to  refer  the  question 
to  the  people. 

"  Mr.  Gerry  .  .  .  considered 
the  Confederation  to  be  paramount 
to  any  State  Constitution.  The  last 
Article  of  it,  authorizing  altera- 
tions, must  consequently  be  so  as 
well  as  the  others;  and  everything 
done  in  pursuance  of  the  article, 
must  have  the  same  high  authority 
with  the  article. 

"Mr.    Gorham   was   against   re- 


ferring the  plan  to  the  Legisla- 
tures.    .     .     . 

"  Mr.  Ellsworth  .  .  .  thought 
more  was  to  be  expected  from 
the  Legislatures  than  the  people. 
.  .  .  The  Legislatures  were  con- 
sidered as  competent.     .     .     . 

"Mr.  Williamson  thought  the 
Resolution  (the  nineteenth)  so  ex- 
pressed, as  that  it  might  be  sub- 
mitted either  to  the  Legislatures  or 
to  Conventions  recommended  by 
the  Legislatures.  He  observed  that 
some  Legislatures  were  evidently 
unauthorized  to  ratify  the  system. 
He  thought,  too,  that  Conventions 
were  to  be  preferred,  as  more  likely 
to  be  composed  of  the  ablest  men 
in  the  States. 

"Mr.  Gouverneur  Morris  consid- 
ered the  inference  of  Mr.  Ellsworth 
from  the  plea  of  necessity,  as  ap- 
plied to  the  establishment  of  a  new 
system,  on  the  consent  of  the  people 
of  a  part  of  the  States,  in  favor  of 
a  like  establishment,  on  the  consent 
of  a  part  of  the  Legislatures,  as  a 
non  sequitur.  If  the  Confederation 
is  to  be  pursued,  no  alteration  can 
be  made  without  the  unanimous 
consent  of  the  Legislatures.  Legis- 
lative alterations  not  conformable 
to  the  Federal  compact  would 
clearly  not  be  valid.  The  Judges 
would  consider  them  as  null  and 
void.  Whereas,  in  case  of  an  ap- 
peal to  the  people  of  the  United 
States,  the  supreme  authority,  the 
Federal  compact  may  be  altered  by 
a  majority  of  them,  in  like  manner 
as  the  Constitution  of  a  particular 
State  may  be  altered  by  a  majority 
of  the  people  of  the  State.  The 
amendment    moved     by  Mr.  Ells- 

333 


TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  VI. 


Constitution  was  sent  to  the  Federal  Congress  with  the  re- 
quest to  have  it  ratified  by  Conventions  of  delegates  chosen 
by  the  people  of  each  State,  but  to  be  called  by  the  respec- 


worth  erroneously  supposes,  that 
we  are  proceediug  on  the  basis  of 
the  Confederation.  This  Conven- 
tion is  unknown  to  the  Confedera- 
tion. 

"  Mr.  King  thouglit  with  Mr.  Ells- 
worth that  the  Legislatures  had  a 
competent  authority,  the  acquies- 
cence of  the  people  of  America  in 
the  Confederation  being  equivalent 
to  a  formal  ratification  by  the 
people.  He  thought  with  Mr.  Ells- 
worth, also,  that  the  plea  of  neces- 
sity was  as  valid  in  the  one  case,  as 
the  other.  At  the  same  time,  he 
preferred  a  reference  to  the  author- 
ity of  the  people  expressly  dele- 
gated to  Conventions,  as  the  most 
certain  means  of  obviating  all  dis- 
putes and  doubts  concerning  the 
legitimacy  of  the  new  Constitution, 
as  well  as  the  most  likely  means  of 
drawing  forth  the  best  men  in  the 
States  to  decide  on  it.  He  re- 
marked that  among  other  objec- 
tions, made  in  the  State  of  New 
York  to  granting  powers  to  Con- 
gress, one  had  been,  that  such  pow- 
ers as  would  operate  within  the 
States  could  not  be  reconciled  to 
the  Constitution,  and  therefore 
were  not  gran  table  by  the  Legis- 
lative authority.  He  considered  it 
as  of  some  consequence,  also,  to  get 
rid  of  the  scruples  which  some 
members  of  the  State  Legislatures 
might  derive  from  their  oaths  to 
support  and  maintain  the  existing 
Constitutions. 

"Mr.  Madison  thought  it  clear 
that  the  Legislatui'es  were  incompe- 
tent to  the  proposed  changes. 
These  changes  would  make  essen- 
tial inroads  on  the  State  Constitu- 
tions; and  it  would  be  a  novel  and 

334 


dangerous  doctrine,  that  a  Legisla- 
ture could  change  tlie  Constitution 
under  which  it  held  its  existence. 
There  might  indeed  be  some  Con- 
stitutions within  the  Union,- which 
had  given  a  power  to  the  Legis- 
lature to  concur  in  alterations  of 
the  Federal  compact.  But  there 
were  certainly  some  which  had  not; 
and  in  the  case  of  these,  a  ratifica- 
tion must  of  necessity  be  obtained 
from  the  people.  He  considered 
the  difference  between  a  system 
founded  on  the  Legislatures  only, 
and  one  founded  on  the  people,  to 
be  the  true  difference  between  a 
Icar/ue  or  treaty,  and  a  Constitution. 
The  former,  in  point  of  moral  obli- 
gation, might  be  as  inviolable  as  the 
latter.  In  point  oi  political  opera- 
tion, there  were  two  important  dis- 
tinctions in  favor  of  the  latter. 
First,  a  law  violating  a  treaty  rati- 
fied by  a  pre-existing  law  might  be 
respected,  by  the  Judges  as  a  law, 
though  an  unwise  or  perfidious  one. 
A  law  violating  a  Constitution  es- 
tablished by  the  people, themselves, 
would  be  considered  by  the  Judges 
as  null  and  void.  Secondly,  the 
doctrine  laid  down  by  the  law  of 
nations  in  the  case  of  treaties  is, 
that  a  breach  of  any  one  article  by 
any  of  the  parties  frees  the  other 
parties  from  their  engagements. 
In  the  case  of  a  union  of  people 
under  one  constitution,  the  nature 
of  the  pact  has  always  been  under- 
stood to  exclude  such  an  interpre- 
tation. Comparing  the  two  modes, 
in  point  of  expediency,  he  thought 
all  the  considerations  which  recom- 
mended this  Convention,  in  prefer- 
ence to  Congress,  for  proposing  the 
reform,  were  in  favor  of  State  Con- 


CH.  VI.] 


THE   FEDERAL   CONVENTION. 


§195 


live  State  Legislatures.^     The  ratification,  therefore,  of  the 
perfected  worli  of  the  Constitutional  Convention  not  only 


ventions,  in  preference  to  the  Legis- 
latures for  examining  and  adopting 
it. 

"  On  the  question  on  Mr.  Ells- 
worth's motion  to  refer  the  plan  to 
the  Legislatures  of  the  States, — 
Connecticut,  Delaware,  Maryland, 
aye — 3;  Xew  Hampshire,  Massa- 
chusetts, Pennsylvania,  Virginia, 
North  Carolina,  South  Carolina, 
Georgia,  no — 7. 

"  Mr.  Gouverneur  Morris  moved, 
that  the  reference  of  the  plan  be 
made  to  one  General  Convention, 
chosen  and  authorized  by  the  peo- 
ple, to  consider,  amend,  and  estab- 
lish the  same.     Not  seconded. 

"  On  the  question  for  agreeing  to 
the  nineteenth  Resolution,  touch- 
ing the  mode  of  ratification  as  re- 
ported from  the  Committee  of  the 
Whole,  viz.,  to  I'efer  the  Constitu- 
tion, after  the  approbation  of  Con- 
gress, to  assemblies  chosen  by  the 
people, — New  Hampshire,  Massa- 
chusetts, Connecticut,  Pennsyl- 
vania, Maryland,  Virginia,  North 
Carolina,  South  Carolina,  Georgia, 
aye — 9;  Delaware,  no — 1."  Madi- 
son Papers,  Vol.  II,   pp.  1177-1185. 

2  In  his  American  Constitutional 
Law,  already  referred  to,  Mr.  Hare 
says,  vol.  I,  pp.  89-91:  "  When  the 
Convention  met  at  Philadelphia, 
the  people  of  the  United  States,  not 
less  than  the  people  of  the  States, 
came  through  their  agents,  and 
being  present  in  both  capacities, 
might  determine  in  which  they 
would  act  in  framing  the  Consti- 
tution. Whether  it  should  be  made 
by  the  people  of  the  United  States 
and  sanctioned  by  the  States,  or 
made  by  the  States  and  sanctioned 
by  the  people,  might  seem  imma- 
terial, because  it  would  in  either 


way  be  the  deed  of  both.  The  for- 
mer method,  that  the  people  of  the 
United  States  should  ordain,  and 
the  States  ratify,  was  adopted. 
For  if  it  should  be  alleged  at  any 
future  period  that  the  American 
people  had  no  national  or  organic 
existence,  and  that  the  States  were 
the  sole  authors  of  the  Constitu- 
tion, and  might  undo  what  they 
had  done,  it  would  still  be  obvious 
that  the  States  mutually  agreed 
that  such  a  people  should  be  re- 
garded as  existing,  and  that  the 
government  should  be  treated  as 
its  handiwork,  they  would,  on  a 
well-known  and  familiar  principle 
which  the  law  has  derived  from 
ethics,  be  precluded  for  all  the  pur- 
poses of  that  government,  from  de- 
nying what  they  had  solemnly  ad- 
mitted. I  refer  to  the  doctrine  of 
estoppel,  that  what  is  held  forth 
as  an  inducement  to  others,  shall 
not  be  retracted  after  they  have 
acted  on  the  faith  of  the  assurance. 
The  effect  was  to  place  the  sover- 
eignty of  the  new  government  on 
a  basis  which  was  as  unalterable  as 
if  the  Conventions  of  the  various 
States  had  publicly  proclaimed  and 
crowned  a  king.  There  are,  as 
Mr.  Madison  contended  in  the  re- 
marks already  cited,  and  as  Jack- 
son insisted  in  his  proclamation 
against  nullification,  grants  which 
must  be  irrevocable  in  order  to  at- 
tain their  object;  and  the  establish- 
ment of  a  government  is  one  of 
them.  Whether  the  newly  created 
sovereignty  was  vested  in  a  com- 
monwealth or  in  a  monarchy,  it 
would  on  every  principle  of  na- 
tional and  public  law  have  a  claim 
to  the  allegiance  of  its  subjects 
which  it  might  enforce  by  arms. 

335 


'^"' 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH. 


VI. 


assuieil  its  ])erinanencj  but  also  its  nationality  and  abso- 
lutely veiilied  the  preamble,  "We,  the  people,"  thus  forever 
obviating  all  questions  as  to  the  increased  authority  of  the 
Federal  Government,  as  well  as  the  additional  limitations 


(Citing  in  a  note  United  States  vs. 
Maurice,  Marsuall,  Ch.  J.,  2 
Brock.  96,  p.  109,  and  Van  Brock- 
lin  vs.  Temple,  117  U.  S.  151,  p.  154.) 

"  Established  not  by  one,  by  two, 
or  by  three  of  tlie  States,  but  by 
the  people  of  all  the  States,  speak- 
ing in  their  collective  capacity  as 
the  people  of  the  United  States, 
the  union  could  not  be  dissolved 
consistently  with  that  well  known 
maxim  thnt  the  power  which 
bound  is  the  only  one  that  can  un- 
loose, unless  all  concurrerl,  and 
then  only  because  the  concurrence 
of  the  citizens  of  all  the  States  in 
such  an  act  would,  on  a  principle 
already  stated,  be  in  effect  a  renun- 
ciation or  abdication  by  the  people 
of  the  United  States." 

Mr.  Curtis  says  in  his  Constitu- 
tional History  of  the  United  States, 
2d  Vol,  pp.  11.5-116: 

"The  reader  who  has  followed 
me  through  the  preceding  volume 
has  seen  that  at  a  very  early  period 
in  the  deliberations  of  the  conven- 
tion it  was  settled  that  the  new 
government  must  be  divided  into 
the  three  departments  of  the  legis- 
lature, the  executive,  and  the  ju- 
dicial, and  that  it  must  be  a  national 
government.  It  may  here  be  use- 
ful to  condense  into  one  statement 
what  has  already  been  given  in 
greater  detail  in  regard  to  the 
early  distinction  between  a  '  na- 
tional '  and  a  '  federal '  government. 
It  has  appeared  that  many  impor- 
tant members  of  the  convention 
admitted  at  once  the  necessity  for 
a  more  efficient  government  than 
that  of  the  first  Confederacy  of 
the  states,  but  they  believed  that 

336 


the  existing  system  of  the  Union 
could  be  made  to  answer  all  re- 
quirements by  distributing  its 
jjowers  into  the  three  departments 
of  a  legislative,  an  executive,  and 
a  judiciary,  without  altering  the 
principle  which  made  the  Union 
a  close  league  between  sovereign 
states  for  certain  purposes  com- 
mon to  them  all.  But  under  this 
principle  there  had  been  no  mode 
by  which  the  legislative,  the  exec- 
utive, or  the  judicial  powers  could 
be  made  to  act  directly  upon  indi- 
viduals, whether  those  powers 
were  vested  in  one  body  of  men  or 
in  several  bodies.  Nor  had  such  a 
mode  of  action  upon  individuals 
been  devised  in  any  of  the  confed- 
eracies between  different  states, 
either  in  ancient  or  in  modern 
times.  It  was  found  that  in  order 
to  reach  and  introduce  the  princi- 
ple of  direct  action  upon  the  indi- 
vidual citizen,  some  means  must 
be  discovered  by  which  the  powers 
of  the  central  government,  what- 
ever they  were  to  be,  could  be 
made  supreme  over  the  separate 
powers  of  the  states,  in  case  of  any 
conflict.  To  abolish  the  states,  or 
to  fuse  all  the  elements  of  political 
sovereignty  into  one  mass,  w^asout 
of  the  question.  The  convention 
was  not  assembled  and  had  not 
been  instituted  with  any  design  or 
expectation  that  the  people  of  the 
states  would  merge  themselves  in 
one  national  democracy,  or  de- 
posit the  whole  of  their  respective 
sovereignties  in  the  hands  of  a 
central  government  of  any  form  or 
description." 


CH.  VI.] 


THE   FEDERAL    CONVENTION. 


§196 


upon  State  Sovereignty,  and  making  the  Constitution,  the 
laws  of  the  United  States,  and  all  treaties  made  under  their 
authority,  the  supreme  law  of  the  land  and  absolutely  bind- 
ing not  only  on  the  judges,  as  expressed  in  the  Constitution, 
but  also  upon  all  the  inhabitants  of  all  the  States.^ 

§  19G.  Results  of  the  Convention ;  Washington's  medi- 
tation.— But  whether  the  members  of  that  Convention  them- 
selves knew  what  they  had  accomplished  will  never  be 
known.  Perhaps  some  of  them  thoroughly  appreciated  that 
they  had  laid  the  foundations  of  a  Nation,  perhaps  others 
felt  that  the  State  life  had  been  preserved  to  the  exclusion 
of  all  centralization.  Bancroft  declares  the  members  were 
awe-struck  at  the  residt  of  their  councils ;  the  Constitution 
was  a  nobler  work  than  any  one  of  them  had  believed  it 
possible  to  devise,  and  he  adds  that  they  all  dined  together, 
and  took  a  cordial  leave  of  each  other;  a  single  line  in  that 
summary  of  the  day's  work  contains  a  wondrous  world  of 
thought.  "Washington,"  he  says  "retired  at  an  early  hour 
of  the  evening  to  meditate  on  the  momentous  work  which 
had  been  executed."  ^  That  great  man  well  knew  that  the 
sun  carved  upon  the  back  of  the  chair  which  he  had  occu- 
pied during  those  long  sessions,  and  which  had  been  so  effec- 
tively used  as  a  simile  by  Doctor  Franklin  at  the  close  of 
the  final  session,  not  only  was  a  rising  and  not  a  setting  sun,'' 
but  that  it  was  rising  upon  a  nation  that,  through  the  ef- 
forts of  men  who,  like  himself,  had  buried  all  local  selfish- 
ness in  the  noble  efforts  they  had  made  during  the  past 
months,  was  fully  endowed  with  every  attribute  of  nation- 
ality and  sovereignty  which  would  enable  it  ere  the  close  of 


3  See  opinions  of  Supreme  Court 
as  to  the  nature  of  tlie  ratification 
of  the  Constitution  cited,  and 
quoted  from,  in  §  27,  pp.  47  et  seq. 
ante. 

§196. 

1  Bancroft's  History  of  the  Cor- 
stitution  of  the  United  States,  6th 
Edition,  New  York,  1893,  vol.  2, 
p.  222. 

2  "  The  Constitution  beinji;  sij^ned 
by  all  the   members,    except  Mr. 

22 


Randolph,  Mr.  Mason  and  Mr. 
Gerry,  who  declined  giving  it  the 
sanction  of  tlieir  names,  the  Con- 
vention dissolved  itself  by  an  ad- 
journment sine  die. 

"  Whilst  the  last  members  wei'e 
sifTninp:,  Doctor  Franklin,  looking 
towards  the  President's  chair,  at 
the  back  of  wliich  a  rising  sun 
happened  to  be  painted,  observed 
to  a  few  members  near  him,  that 
painters  had  found  it  difficult  to 

337 


§  196  TREATY-MAKING  POWER  OP  THE  U.  S.        [CH.  VI. 


the  then  approaching  century  to  take  its  proper  place  as  one 
of  the  greatest  powers  of  the  earth. 


distinguish  in  their  art,  a  rising, 
from  a  setting  sun.  I  have,  said 
he,  often  and  often,  in  tlie  course 
of  the  session,  and  the  vicissitudes 
of  my  hopes  and  fears  as  to  its  is- 
sue, looked  at  that  behind  the 
President,  without  being  able  to 
tell  whether  it  was  rising  or  set- 
ting: but  now  at  length,  I  have  the 
hapi)iness  to  know,  that  it  is  a  ris- 
ing, and  not  a  settiug  sun."  Mad- 
ison Papers,  Vol.  Ill,  p.  1624. 

"  The  story  is  told  that  at  the 
last  session  of  the  convention  which 
framed  the  Constitution  of  the 
United  States,  and  after  the  final 
draft  had  been  adopted  and  the 
delegates  were  about  to  disperse, 
the  venerable  Franklin  rose,  and, 
pointing  to  the  quaint  back  of  the 
chair  which  Washington  had  occu- 
pied while  presiding,  and  on  which 
there  was  carved  a  half  sun  with 
rays  radiating  from  it,  said:  'As 
I  have  been  sitting  here  all  these 
weeks,  I  have  often  wondered 
whether  yon  sun  is  rising  or  set- 

338 


ting.     But  now  I  know  that  it  is  a 
rising  sun.' 

"The  old  man's  prophecy  has 
been  fulfilled.  Cannot  we  make  it 
applicable  to  the  present  crisis, 
and  as  by  the  sword  of  Washington 
the  sun  of  liberty  rose  o'er  our 
counti'y,  and  by  the  pen  of  Lincoln 
the  single  cloud  of  slavery  that 
darkened  it  was  swept  away,  so 
under  the  guidance  of  our  noble 
President  and  Commander-in-Chief 
who  can  doubt  but  that  the  same 
sun  that  sheds  its  rays  of  happiness 
and  peace  over  our  own  land,  will 
also  shed  them  alike  on  the  land  of 
our  neighbor,  and  that  beneath 
their  heat  tyranny  and  oppression 
will  forever  melt  away  from  the 
Western  Hemisphere  over  which 
nature  and  our  honor  have  made  us 
the  natural  guardians  of  peace  and 
liberty."  Voice  of  the  Nation,  by 
Charles  Henry  Butler,  April,  1898, 
quoting  above  incident  and  apply- 
ing it  to  Message  of  President  Mc- 
Kinley  of  April  11,  1898,  in  regard 
to  Cuba. 


CHAPTER  yiL 


PROCEEDINGS  OF  THE  CONSTITDTIONAL  CONVENTIONS  OF  THE 
SEVERAL  STATES,  IN  SO  FAR  AS  THEY  RELATE  TO  THE  TREATY- 
MAKING  POWER  OF  THE  NATIONAL  GOVERNMENT. 


Section 

197 — Constitution  to  be  ratified 
by  States. 

198 — Delaware  the  first  State  to 
ratify. 

199 — Convention  meets  in  Penn- 
sylvania; prominent  mem- 
bers. 

200 — Views  of  minority  opposing 
ratification. 

201 — Subsequent  protest  of  mi- 
nority to  force  the  adop- 
tion of  amendments. 

202 — Ratification  by  New  Jersey. 

203 — Georgia  and  Connecticut 
ratify;  conditions  in  other 
States. 

204 — Massachusetts  Convention 
meets;  members  compos- 
ing it. 

20.J — Position  of  Samuel  Adams; 
Constitution  ratified. 

206 — Ratification  by  Maryland; 
Luther  Martin's  protest. 

207— The  Constitution  in  South 
Carolina;  Mr.  Pinckney's 
views. 

208 — Rawlin  Lowndes's  opposi- 
tion; Mr.  Pringle's  views. 

209 — Other  views  expressed  on  the 
treaty-making  power. 

210— Constitution  ratified  by 
South  Carolina. 

211 — Constitutional  (Convention 
meets  in  Virginia. 

212 — Opposition  led  by  Patrick 
Henry, 


Section 

213 — Governor  Randolph's  posi- 
tion. 

214 — Opposing  forces  in  Virginia 
conventit)n. 

215 — Mr.  Madison's  views. 

216 — Mr.  Henry  again  expresses 
his  views. 

217— Mr.  Madison's  reply  to  Mr. 
Henry. 

218 — Treaty-making  power  as  it 
affected  Virginia;  the  navi- 
gation of  the  Mississippi. 

219 — Patrick  Henry  on  the  pre- 
rogatives of  the  King  of 
Great Biitain ;  other  views. 

220 — Views  of  Mr.  Corbin  on  ne- 
cessity of  treaty-making 
powers  in  Central  Govern- 
ment. 

221 — Patrick  Henry's  views  as  to 
effect  of  treaties  on  States. 

222 — Mr.  Madison's  support  of 
Constitutional  provisions 
as  to  treaties;  final  debate. 

223 — Constitution  finally  ratified 
by  Virginia;  amendments 
suggested. 

224 — Ratification  by  New  Hamp- 
shire; action  of  Rhode 
Island ;  Convention  in  New 
York. 

225 — Personnel  of  New  York  Con- 
vention. 

226 — Treaty- making  power  re- 
ferred to. 

839 


§  li^< 


TREATY-MAKING  POWER  OF  THE  U.  S.      [CH.  VU. 


Section 

227 — North  Carolina  rejects  the 
Constitution;  Judge  Ire- 
dell's views  on  treaty- 
making. 

228 — Views  of  other  delegates. 

220 — Mr.  Davie's  views  continued. 


Section 

230 — Resolutions  of  North  Caro- 
lina as  to  position  of  that 
State  on  Constitution  and 
relations  to  other  States. 

231 — Ratification  hy  eleven  States 
makes  Constitution  effec- 
tive. 


§  197.  Constitution  to  be  ratified  by  States. — A  great 
victory  had  been  achieved  in  the  Federal  Constitutional  Con- 
vention ;  a  harder  battle  was,  however,  to  be  fought  before 
the  Constitution  of  the  United  States,  as  the  sovereign  act 
of  the  People^  was  to  take  the  place  of  the  Articles  of  Con- 
federation of  the  States,  and  to  effectually  unite  into  one 
jjreat  nation  the  various  Commonwealths  which  were  fast 
drifting  apart  owing  to  the  inefficacy  of  those  Articles. 

It  was  necessary  to  submit  the  Constitution  to  the  people 
of  the  thirteen  different  States,  and  to  obtain  the  ratification 
of  at  least  nine,^  and  eventually  of  them  all,  before  the  Union 
could  be  considered  as  absolutely  safe.^ 

It  was  by  no  means  an  easy  task  to  obtain  this  result 
when  the  theory  of  States'  rights  had  such  able  vindicators 
as  Patrick  Henry,  Luther  Martin,  Elbridge  Gerry,  Samuel 
Adams,  and  Colonel  Mason. 

The  Federal  Convention  had,  as  we  have  seen,  recom- 
mended that  the  ratification  should  be  by  State  conventions 
and  not  by  State  legislatures ;  ^  this  course  was  adopted  by 
Congress  and  the  report  of  the  Federal  Convention  was  trans- 
mitted to  the  legislatures  of  the  respective  States  in  order 
that  the  State  conventions  might  be  called  at  once.^ 


§197. 

1  Constitution  of  United  States, 
Article  VII. 

2  See  note  under  §  169,  pp.  294  ei 
seq.,  ante,  for  authorities  on  pro- 
ceedings of  State  conventions  to 
which  the  Constitution  was.  re- 
ferred. The  references  in  the  notes 
to  the  subsequent  sections  of  this 
chapter  will  principally  be  to  vol- 
umes II,  III  and  IV  of  Elliot's  De- 


the  United  States,  and  to  certain 
special  histories  written  in  regard 
to  the  State  conventions  of  Penn- 
sylvania, Maryland,  Virginia  and 
Massachusetts. 

3  See  §  195,  p.  332  et  seq.,  ante. 

*  The  United  States  in  Com/ress 
assembled,  Friday,  September  28th, 
1787. 

'■^Present, — New  Hampshire, 
Massachusetts,    Connecticut,   New 


bates;  references  will  also  be  made    York,  New  Jersey,  Pennsylvania, 
to  Curtis'  Constitutional  History  of    Delaware,    Virginia,   North    Caro- 

340 


CH.  VII.] 


THE   STATE    CONVENTIONS. 


§  200 


§  198.  Delaware  the  first  State  to  ratify. — On  Septem- 
ber 14, 1787,  the  Constitutional  Convention  adjourned;  the 
States  were  notified  by  Congress  on  September  28th,  and  on 
December  7,  Delaware  headed  the  list  of  ratifying  States  by 
a  unanimous  ratification.^ 

§  199.  Couvention  meets  in  Pennsylvania ;  prominent 
members. — On  November  20th,  however,  the  first  State 
convention  had  convened  in  Philadelphia,  to  discuss  the  fate 
of  the  Constitution  in  Pennsylvania  where  its  ratification 
was  neither  prompt  nor  unanimous.  The  convention  included 
Frederick  Augustus  Muhlenberg,  afterwards  Speaker  of  the 
first  House  of  Kepresentatives,  Timothy  Pickering,  after- 
wards Secretary  of  State,  Benjamin  Rush,  James  Wilson, 
afterwards  a  Judge  of  the  United  States  Supreme  Court, 
Thomas  McKean,  Chief  Justice  of  the  State,  and  many 
others  of  great  ability.^  After  a  protracted  discussion  in 
which  the  Constitutional  party  was  led  by  James  Wilson, 
and  their  opponents  by  William  Findlay,  the  Constitution 
was  ratified  on  December  12th. 

§  200.  Views  of  minority  opposing  ratification. — When 


lina,  South  Carolina,  and  Georgia; 
and  for  Maryland,  Mr.  Ross. 

"  Congress  having  received  the 
report  of  the  Convention,  lately 
assembled  in  Philadelphia, 

"■  Resolved,  unanimoufily,  That  the 
said  report,  with  the  resolutions 
and  letter  accompanying  the  same, 
be  transmitted  to  the  several  legis- 
latures, in  order  to  submit  to  a 
convention  of  delegates,  chosen  in 
each  state  by  the  people  thereof, 
in  conformity  to  the  resolves  of 
the  Convention  made  and  provided 
in  that  case."  Elliot's  Debates, 
vol.  I,  p.  18. 

§198. 

^  The  ratifications  by  the  several 
States  appear  to  have  been  put  into 
authoritative  form  for  transmission 
to  Congress  on  the  following  dates 
(taken  from  the  formal  ratifica- 
tions as  collected  in  Elliot's  De- 
bates, vol.  I,  pp.  319-343J: 


(1)  Delaware,  December  7,  1787; 
(2)  Pennsylvania,  December  12, 
1787;  (3)  New  Jersey,  December  18, 
1787;  (4)  Connecticut,  January  9, 
1788;  (5)  Massachusetts,  February 
7,  1788;  (6)  Georgia,  January  2, 
1788;  (7)  Maryland,  April  28,  1788; 
(8)  South  Carolina,  May23, 1788;  (9) 
New  Hampshire,  June  21,  1788; 
(10)  Virginia,  June  26,  1788;  (11) 
New  York,  July  26, 1788;  (12)  North 
Carolina,  November  21,  1789;  (13) 
Rhode  Island,  May  29,  1790. 

§199. 

1  Elliot's  Debates,  vol.  II,  pp. 
415-546;  Curtis'  Constitutional 
History  of  the  United  States,  vol.  I, 
pp.  641-64G;  Pennsylvania  and  the 
Federal  Constitution,  1787-1788, 
edited  by  John  Bach  McMaster  and 
Frederick  D.  Stone,  published  by 
the  Historical  Society  of  Pennsyl- 
vania, 1888. 

341 


§  201  TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  VII. 


the  ratification  of  the  Constitution  by  the  Pennsylvania 
convention  became  inevitable,  the  minority  submitted  a 
written  statement  of  their  reasons  for  dissent ;  they  laid 
great  stress  upon  the  vast  extent  of  the  treaty-making  power, 
lodged  in  the  Central  Government,  in  which  respect  they  de- 
clared that  no  treaty  which  should  be  directly  opposed  to 
the  existing  laws  of  the  United  States  in  Congress  assembled, 
should  be  valid  until  such  laws  should  have  been  repealed, 
or  made  conformable  to  such  treat}'^ ;  neither  should  any 
treaties  be  valid  which  were  in  contradiction  to  the  Consti- 
tution of  the  United  States,  or  the  constitution  of  the  several 
States.^  They  gave  as  the  foundation  of  their  objections  to 
the  Senate  and  its  powers,  various  reasons,  some  of  which 
are  quoted  in  the  notes  to  this  section,^ 

§  201.  Subsequent  protest  of  minority  to  force  the  adop- 
tion of  amendments. — The  non-participation  in  treaty-mak- 


§  200. 

1  McMaster  and  Stone,  p.  463. 

2 "  The  Senate  has,  moreover, 
various  and  great  executive  powers, 
viz.  in  concurrence  with  the  presi- 
dent-general, they  form  treaties 
with  foreign  nations,  that  may  con- 
trol and  abrogate  the  constitutions 
and  laws  of  the  several  States.  In- 
deed, there  is  no  power,  privilege 
or  liberty  of  the  State  governments, 
or  of  the  people,  but  what  may  be 
affected  by  virtue  of  this  power. 
For  all  treaties,  made  by  them,  are 
to  be  the  '  supreme  law  of  the  land ; 
anything  in  the  constitution  or 
laws  of  any  State,  to  the  contrary 
notwithstanding.' 

"  And  this  great  power  may  be 
exercised  by  the  President  and  ten 
senators  (being  two-thirds  of  four- 
teen, which  is  a  quorum  of  that 
body).  What  an  inducement  would  j  there  can  be  no  liberty,  because 
this  offer  to  the  ministers  of  for-    apprehensions  may  arise,  lest  the 


the  positive  laws  of  the  land,  to 
make  tlie  intervention  of  the  leg- 
islature necessary  to  give  them 
operation.  This  became  necessary, 
and  was  afforded  by  the  parliament 
of  Great  Britain,  in  consequence 
of  the  late  commercial  treaty  be- 
tween that  kingdom  and  France. 
As  the  Senate  judges  on  impeach- 
ments, who  is  to  try  the  members 
of  the  Senate  for  the  abuse  of  this 
power!  And  none  of  the  great 
appointments  to  office  can  be  made 
without  the  consent  of  the  Senate. 
"Such  various,  extensive,  and  im- 
portant powers  combined  in  one 
body  of  men,  are  inconsistent  with 
all  freedom;  the  celebi'ated  Mon- 
tesquieu tells  us,  that  'when  the 
legislative  and  executive  powers 
are  united  in  the  same  person,  or 
in  the  same  body  of  magistrates. 


eign  powers  to  compass  by  brib- 
ery such  concesfiions  as  could  not 
otherwise  be  obtained.  It  is  the 
unvaried  usage  of  all  free  States, 
whenever    treaties    interfere  with 

342 


same  monarch  oi  senutc  should  en- 
act tyrannical  laws,  to  execute  them 
in  a  tyrannical  manner.'  "  Mc- 
Master and  Stone,  p.  476. 


TH.  VII.J  THE    STATE   CONVENTIONS.  §  203 

ing,  of  the  House  of  Representatives,  the  popular,  or  na- 
tional, branch  of  Congress,  was  one  of  the  particular  grounds 
taken  by  the  minority  in  this  convention  for  opposing  the 
ratification  of  the  Constitution.     Subsequently  another  ef- 
fort was  made  to  induce  Pennsylvania  to  take  an  adverse 
stand  to  the  Constitution  as  ratified ;  on  September  3,  1788 
nine  months  after  the  ratification,  a  number  of  Pennsylva- 
nians  met  at  Harrisburg,  and,  after  organizing  with  Blair 
McClenahan  as  Chairman  and  John  A.  Ilanna  as  Secretary, 
presented  an  address  to  the  General  Assembly  of  the  State 
urging  it  to  take  measures  to  procure  the  adoption  of  cer- 
tain  amendments  to  the  Constitution  as  ratified,  one  of 
which  was  that  "  to  Article  YI,  Clause  2,  be  added  the  fol- 
lowing proviso,  viz :  Provided,  always.  That  no  treaty,  which 
shall  hereafter  be  made,  shall  be  deemed  or  construed  to  alter 
or  affect  any  law  of  the  United  States,  or  of  any  particular 
State,  until  such  treaty  shall  have  been  laid  before  and  as- 
sented to  by  the  House  of  Representatives  in  Congress."  ^ 
From  this  it  appears  that  the  wide  extent  of  power°lodged 
in  the  President  and  two-thirds  of  the  Senate  was  not  only 
fully  appreciated,  but  was  also  greatly  feared,  by  the  signers 
of  this  petition,  and  that  the  great  publicity  given  to  'these 
proceedings  at  the  time  put  the  people,  not  only  of  Pennsyl- 
vania, but  also  of  the  other  States,  thoroughly  on  notice. 

§  202.  Ratification  by  New  Jersey — New  Jersey  followed 
shortly  after  this,  the  convention  of  that  State  unanimously 
ratifying  the  Constitution  on  December  12,  1787,  althouo-h 
the  Anti-Federalists  of  JN^ew  York  and  Pennsylvania  used 
every  effort  to  persuade  their  intermediate  neio-hbors  to  re- 
ject it.i 

§  203.  Georgia  and  Connecticut  ratify ;  conditions  in 
other  States — Georgia  was  the  first  of  the  Southern  States 
to  fall  into  line,i  while  Connecticut,  under  the  leadership  of 


§201. 

1  Elliot's  Debates,  vol.  II,  pp.  542- 
546;  Mc Master  and  Stone,  p.  504. 
§202. 
1  Curtis'   Constitutional   History 


of  the  United  States,  vol.  I,  p.  645- 
646;  Elliot's  Debates,  vol.  I,  p.  320; 

§  203. 

1  Elliot's  Debates,  vol.  I,  p.  323; 
Curtis'  Constitutional  History  of 
the  United  States,  vol.  I,  p.  646. 

343 


§  '204:  TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  VII. 

Oliver  Ellsworth,  occupied  the  corresponding  position  in 
New  England.'- 

By  January  9,  17S8,  five  States  had  ratified  the  Consti- 
tution, and  all  had  done  so  unconditionally  ;  the  ratifications 
b}'^  four  more  were  necessary  before  it  could  become  opera- 
tive. But,  as  Mr.  Curtis  says  in  his  Constitutional  History, 
"  a  new  act  in  the  drama  was  to  open  with  the  New  Year."  ^ 
Massachusetts,  New  York  and  Virginia  were,  indeed,  to  rat- 
ify the  Constitution,  but  subject  to  conditions,  either  in  form 
or  in  spirit ;  amendments  were  to  be  proposed  and  insisted 
upon,  and  for  a  long  time  the  fate  of  the  Constitution  hung 
in  the  balance ;  from  January  9,  1788,  when  the  sessions 
of  the  Massachusetts  convention  commenced  until  June  25th, 
when  the  ratification  by  the  Virginia  convention  made  the 
plan  an  assured  success,  in  fact,  even  until  July  26th,  when 
the  Constitution  was  ratified  by  the  New  York  convention, 
the  all  absorbing  thought  and  the  single  universal  topic  of  the 
country  was  the  Constitution,  and  its  adoption  or  rejection. 

§  20tt.  Massachusetts  Convention  meets ;  members  com- 
posing it. — On  January  9, 1788,  the  special  convention  called 
for  consideration  of  the  Constitution  and  composed  of  355 
delegates  met  at  Boston,  Massachusetts.^ 

It  included  many  remarkable  men,  some  of  whom  Avere 
foremost  citizens  of  the  State ;  there  were  others,  however, 
who  had  actually  participated  in  Shay's  Kebellion  and  who 
were  opposed  to  the  adoption  of  the  Constitution  or,  prob- 
ably, to  the  establishment  of  any  strong  central  govern- 
ment which  could,  and  would,  enforce  law  and  order. 

Among  some  of  the  ablest  members  were  Fisher  Ames, 
John  Winthrop,  James  Bowdoin,  John  Hancock,  William 
Cushing,  Francis  Dana,  Rufus  King,  and  Judge  Sumner.^ 

John  Hancock  was  chosen  President,  and  William  Cush- 
ing, Vice  President,  of  the  convention.     On   February  2d, 


2  Elliot's  Debates,  vol.  II,  pp.  185- 
202;  Cnrtis'  Constitutional  History 
of  the  United  States,  vol.  1,  p.  647. 

3  Idem  p.  648. 
§204. 

1  Elliot's  Debates,  vol.  II,  pp.  1- 
183.     Curtis'    Constitutional    His- 

344 


tory  of  the  United  States,  vol.  I,  p. 
649 ;  Massach  iisetts  and  the  Federal 
Convention  by  Samuel  Bannister 
Harding,  New  York  and  London, 
1896. 

2  Elliot's  Debates,  vol.  II,  pp.  178 
-181. 


CH.  VII.]  THE    STATE   CONVENTIONS.  §  205 

the  Constitution  was  ratified  by  a  vote  of  187  to  168  ;^  the 
narrow  majority  of  19  was  undoubtedly  secured  by  the 
adoption  of  a  resolution  that  certain  amendments  should  be 
recommended  to  Congress  as  the  wish  of  the  State  in  regard 
to  the  Constitution.  Some  of  these  suggestions  were  incor- 
porated in  the  amendments  which  were  passed  by  the  first 
Congress  and  immediately  ratified  by  the  States,  and  thus 
became  incorporated  in  the  Constitution  almost  at  the  outset 
of  the  Government.  None  of  the  amendments  suggested  by 
the  Massachusetts  convention  related  to  the  treaty-making 
power.^ 

§  205.  Position  of  Samuel  Adams ;  Constitution  ratified. 
— During  the  proceedings  of  this  convention  tiie  Constitution 
was  discussed  in  all  of  its  varied  phases  and  aspects.  It  was 
ably  supported ;  it  was  vigorously  condemned.  It  was  well 
known  at  the  outset  that  Samuel  Adams,  "  Father  of  the 
Revolution,"  or,  as  he  is  also  called  "  The  American  Cato,"  * 
was  to  a  certain  extent  opposed  to  the  Constitution  ;  for  a 
long  time  many  of  his  followers  withheld  any  expression  of 
their  views,  while  they  waited  for  him  to  announce  the  course 
which  he  intended  to  take.  Not  until  the  last  days  of  the 
convention  did  he  finally  declare  that  he  would  vote  for  rati- 
fication ;  in  doing  so  he  admitted  that  he  had  his  doubts, 
and  that  he  could  not  digest  every  part  of  it  as  readily  as 
some  of  the  other  gentlemen  had  done ;  he  felt,  however, 
that  it  was  the  best  that  could  be  obtained,  and  on  the  whole 
that  ratification  would  be  better  than  rejection.  The  fol- 
lowing extract  from  his  remarks  shows  that  he  fully  appre- 
ciated the  importance  of  lodging  the  treaty-making  power 
in  the  Central  Government.  "  But,  sir,"  he  declared,  "  there 
are  many  parts  of  it  I  esteem  as  highly  valuable,  particularly 
the  article  which  empowers  Congress  to  regulate  commerce, 
to  form  treaties,  &c.  For  want  of  this  power  in  our  na- 
tional head,  our  friends  are  grieved,  and  our  enemies  insult 
us.  Our  ambassador  at  the  Court  of  London  is  considered 
as  a  mere  cipher,  instead  of  the  representative  of  the  United 


8  Elliott's  Debates,  vol.  II,  p.  181. 

*  A  list  of  the  suggested  amend- 
ments will  be  found  at  p.  177  of 
Elliot's  Debates,  vol.  II. 


§205. 

1  Curtis'    Constitutional   History 
of  the  United  States,  vol.  I,  p.  651. 

345 


§206 


TREATY-3kIAKING  POWER  OP  THE  U.  S.      [CH.  VII. 


States.  Therefore,  it  appears  to  nie,  that  a  power  to  remedy 
this  evil  should  be  given  to  Congress,  and  the  remedy  ap- 
plied as  soon  as  possible."  ^ 

i\Ir.  Adams's  scruples  were  no  doubt  removed  1)}^  the  adop- 
tion of  the  resolution  suggesting  the  proposed  amendments ; 
he  is  recorded  in  the  yeas  and  nays  as  having  voted  for  the 
ratification  ;  undoubtedly  the  great  weight  of  his  influence 
largely  aided  in  the  ratification  of  the  Constitution  by  the 
State  of  Massachusetts. 

§  206.  Ratification  hy  Maryland ;  Lutlier  Martin's  pro- 
test.— On  April  28,  1778,  Maryland  ratified  the  Constitution ; 
this  however,  was  not  done  without  a  struggle,  nor  until 
after  Luther  Martin  had  thrown  his  powerful  influence  in 
opposition  to  it,  and  had  presented  to  the  Legislature  a 
lengthy  address  embodying  his  reasons  for  refusing  to  sign 
the  Constitution  and  for  urging  his  own  State  to  withhold 
its  ratification.  Some  of  the  grounds  of  his  views  are  quoted 
in  the  note  to  this  section.^ 


2  Elliot's  Debates,  vol.  II,  p.  123- 
124. 

§206. 

1  "  It  was  urged,  that  the  govern- 
ment we  were  forming  was  not  in 
reality  a  federal  but  a  national 
government,  not  founded  on  the 
principles  of  the  preseri-ution,  but 
the  abolition  or  conHoUdation  of 
all  state  yovernments—ThRt  we  ap- 
peared totally  to  hare  forgotten  the 
business  for  which  we  were  sent, 
and  the  situation  of  the  country  for 
which  we  were  preparing  our  sys- 
tem— That  we  had  not  been  sent  to 
form  a  goA'ernment  over  the  inhabi- 
tants of  America,  considered  as  in- 
dividiuds,  that  as  individuals  they 
were  all  subject  to  their  respective 
state  governments,  which  govern- 
ments would  still  remain,  tho'  the 
federal  government  should  be  dis- 
solved— That  the  system  of  govern- 
ment we  were  entrusted  to  prepare, 
was  a  government  over  these  thir- 
teen states;  butthatinourproceed- 

346 


ings,  we  adopted  principles  which 
would  be  right  and  proper,  only  on 
the  supposition  that  there  were  no 
state  governments  at  all,  but  that 
all  the  inhabitants  of  this  extensive 
continent  were  in  their  individual 
capacity,  without  government,  and 
in  a  state  of  nature — That  accord- 
ingly the  system  proposes  the  leg- 
islature to  consist  of  two  branches, 
the  one  to  be  drawn  from  thepeople 
at  large,  immediately  in  their  in- 
dividual capacity;  the  other  to  be 
chosen  in  a  more  select  manner,  as  a 
check  upon  the  first — It  is  in  its 
very  introduction  declared  to  be  a 
compact  between  the  people  of  the 
United  States  as  individuals ;  and  it 
is  to  be  ratified  by  the  people  at 
large  in  their  capacity  as  individ- 
iials  ;  all  which  it  was  said,  would 
be  quite  right  and  proper,  if  there 
were  no  state  governments,  if  all  the 
people  of  this  continent  were  in  a 
state  of  nature,  and  we  were  form- 
ing one   national  government  for 


CH.  VII.] 


THE    STATE   CONVENTIONS. 


§  207 


§  207.  The  Constitution  in  South  Carolina ;  Mr.  Pinck- 
ney's  views. — A  majority  of  the  States  had  now  ratified  the 
Constitution,  but  under  the  terms  of  the  instrument  the  rati- 
fications of  two  more  were  required ;  six  were  still  to  be 
heard  from. 

A  fierce  battle  was  fought  in  the  South  Carolina  Legis- 
lature over  the  question  of  calling  a  constitutional  conven- 
tion,^ with  the  result  of  calling  one  for  the  12th  of  May,  on 
which  day  it  met  at  Charleston.^  Governor  Thomas  Pinck- 
ney  was  elected  President.  Charles  Cotesworth  Pinckney, 
Rawlins  Lowndes  and  David  Ramsay  took  prominent  parts 
in  the  discussion. 

One  of  the  subjects  of  debate  in  the  legislature  was  the 
treaty-making  power ;  Charles  Cotesworth  Pinckney,  who 
had  been  a  delegate  to  the  Federal  Convention,  explained 
the  reasons  for  vesting  the  treaty-making  power  in  the  Exec- 
utive and  Senate.  During  his  remarks  he  said  that  the  sub- 
ject had  appeared  to  be  of  such  magnitude  that  a  committee 
of  one  member  from  each  State  had  been  appointed  to  con- 
sider and  report  upon  it;^  some  of  the  members  of  that  com- 
mittee were  in  favor  of  vesting  the  treaty-making  power  in 
the  legislature,  but  the  elements  of  secrecy  and  despatch, 
which  are  so  frequently  necessary  in  negotiations,  evinced 
the  impropriety  of  that  course  ;  the  same  reason  showed  the 
impropriety  in  placing  it  solely  in  the  House  of  Representa- 
tives. A  few  of  the  members  were  desirous  that  the  Presi- 
dent, alone,  might  possess  it.  At  last,  however,  it  was  agreed 
to  give  the  President  the  power  of  proposing  treaties  as  he 
was  ostensibly  the  head  of  the  nation,  and  of  vesting  in  the 
Senate,  where  each  State  had  an  equal  voice,  the  power  of 
agreeing  or  disagreeing  with  the  terms  proposed.  "  On  the 
whole,"  he  said,  "  a  large  majority  of  the  Convention  thought 


thetn  as  individuals,  and  is  nearly 
the  same  as  was  done  in  most  of 
the  states,  wlien  they  formed  their 
governments  over  the  people  who 
compose  them."  (The  italics  are 
so  in  the  original  as  published  by 
Yates.)  Elliot's  Debates,  vol.  I, 
p.  344;  see  pp.  359-3G0;  vol.  II,  pp. 
547-556;  Yates'  Secret  Journal  of 


the  Federal  Convention,  pp.  38-39; 
Curtis'  Constitutional  History  of 
United  States,  vol.  I,  p.  656-657. 

§207. 

1  Elliot's  Debates,  vol.  IV,  pp. 
2o3-342;  Curtis'  Constitutional 
History,  vol.  I,  p.  658. 

-Elliot's  Debates,  vol.  IV,  p.  316. 

3  Idem  p.  264. 

347 


§  207  TREATY-MAKING  POWER  OP  THE  U.  S.       [CH.  VII. 

this  power  Avoiild  be  more  safely  lodged  where  they  bad  fi- 
nally vested  it,  than  anywhere  else.  It  was  a  power  that 
must  necessarily  be  lodged  somewhere  :  political  caution  and 
republican  jealousy  rendered  it  improper  for  us  to  vest  it  in 
the  President  alone ;  the  nature  of  negotiation,  and  the  fre- 
quent recess  of  the  House  of  Representatives,  rendered  that 
body  an  impi'oper  depositor}'  of  this  prerogative.  The  Presi- 
dent and  Senate  joined  were,  therefore,  after  much  delibera- 
tion, deemed  the  most  eligible  corps  in  whom  we  could  with 
safety  vest  the  diplomatic  authority  of  the  Union."  ■* 

General  Pinckne}'  spoke  frequently  during  the  debate  and 
on  more  than  one  occasion  gave  particular  attention  to  the 
treaty-making  power  and  the  propriety  of  vesting  it  in  the 
President  and  Senate.^ 


*  Elliot's  Debates,  vol.  IV,  p.  265. 

5  0q  Thursday,  January  17th, 
Charles  Cotesworth  Pinckney  made 
his  strongest  address  in  the  Legis- 
lature on  the  subject  of  the  treaty- 
making  power  in  the  course  of 
which  he  "observed  that  the  hon- 
orable gentleman  (Mr.  Lowndes) 
who  opposed  the  new  Constitu- 
tion had  asserted  that  treaties 
made  under  the  old  Confederation 
were  not  deemed  paramount  to 
the  laws  of  the  land,  and  that 
treaties  made  by  the  king  of  Great 
Britain  required  tlie  ratification  of 
Parliament  to  render  them  valid. 
The  honorable  gentleman  is  surely 
mistaken  in  his  assertion.  His 
honorable  friend  (Chancellor  Rut- 
ledge)  had  clearly  shown  that,  by 
the  6th,  9th,  and  13th  Articles  of 
the  old  Confederation,  Congress 
have  a  power  to  make  treaties,  and 
each  state  is  pledged  to  observe  ' 
them ;  and  it  appears,  from  the  de- 
bates of  the  English  Parliament, 
that  the  House  of  Cominons  did 
not  ratify,  but  actually  censure,  the 
peace  made  by  the  king  of  Great 
Britain  with  America;  yet  the  very 
members  who  censured  it  ackuowl- 

348 


edged  it  was  binding  on  the  nation. 
(Here  the  general  read  extracts 
from  the  parliamentary  debates  of 
the  17th  and  21st  of  February, 
1784.)  Indeed,  the  doctrine  that 
the  king  of  Great  Britain  may  make 
a  treaty  with  a  foreign  stale,  which 
shall  irrevocably  bind  his  subjects, 
is  asserted  by  the  best  writers  on 
the  laws  and  constitution  of  Eng- 
land— particularly  by  Judge  Black- 
stone,  who,  in  the  first  book  of  his 
Commentaries,  (ch.  7,  p.  257),  de- 
clares '  that  it  is  the  king's  pre- 
rogative to  make  treaties,  leagues, 
and  alliances,  with  foreign  states 
and  princes,  and  that  no  other 
power  in  the  kingdom  can  legally 
delay,  resist,  or  annul  them.'  If 
treaties  entered  into  by  Congress 
are  not  to  be  held  in  the  same 
sacred  light  in  America,  what  for- 
eign nation  will  have  any  confidence 
in  us?  Shall  we  not  be  stigmatized 
as  a  faithless,  un worths'^  people,  if 
each  member  of  the  Union  may, 
with  impunity,  violate  the  engage- 
ments entered  into  by  the  federal 
government?  AVho  will  confide  in 
us?  Who  will  treat  with  us  if  our 
practice  should  be  conformable  to 


CH.  vn] 


THE   STATE   CONVENTIONS. 


§  208 


§  208.  Rawliii,  Lowndes'  opposition ;  Mr.  Pringle's  views. 

— Eeplying  to   Mr.  Pinckney,  Rawlin,  Lowndes  declared 


this  doctrine?  Have  we  not  been 
deceiving  all  nations,  by  holding 
forth  to  the  world,  in  the  9th  Arti- 
cle of  the  old  Confederation,  that 
Congress  may  make  treaties,  if  we, 
at  the  same  time,  entertain  this 
improper  tenet,  that  each  state 
may  violate  them?  I  contend  that 
the  article  in  the  new  Constitution, 
which  says  that  treaties  shall  be 
paramount  to  the  laws  of  the  laud, 
is  only  declaratory  of  what  treaties 
were,  in  fact,  under  the  old  com- 
pact. They  were  as  much  the  law 
of  the  land  under  that  Confedera- 
tion, as  they  are  under  this  Consti- 
tution; and  we  shall  be  unworthy 
to  be  ranked  among  civilized  na- 
tions if  we  do  not  consider  treaties 
in  this  view.  Vattel,  one  of  the 
best  writers  on  the  law  of  nations, 
says,  '  There  would  be  no  more 
security,  no  longer  any  commerce 
between  mankiiul,  did  they  not  be- 
lieve themselves  obliged  to  preserve 
their  faith,  aud  to  keep  their  word. 
Nations,  and  their  conductors, 
ought,  then,  to  keep  their  promises 
aud  their  treaties  inviolable.  This 
great  truth  is  acknowledged  by  all 
nations.  Nothing  adds  so  great  a 
glory  to  a  prince  and  the  nation  he 
governs,  as  the  reputation  of  an 
inviolable  fidelity  to  his  engage- 
ments. 15y  this,  and  their  bravery, 
the  Swiss  have  rendered  themselves 
respectable  throughout  Europe. 
This  national  greatness  of  si»nl  is 
the  source  of  immortal  glory;  upon 
it  is  founded  the  confidence  of  na- 
tions, and  it  thus  becomes  a  certain 
instrument  of  power  and  splendor.' 
Surely  this  doctrine  is  right;  it 
speaks  to  the  heart,  it  impresses 
itself  on  the  feelings  of  mankind, 
and  ccmvinces  us  that  the  tranquil- 


lity, happiness,  and  prosperity,  of 
the  human  race,  depend  on  inviola- 
bly preserving  the  faith  of  treaties. 
"Burlamaqui,  another  writer  of 
great  reputation  on  political  law, 
says  'that  treaties  are  obligatory 
on  the  subjects  of  the  powers  who 
enter  into  treaties;  they  are  obli- 
gatory as  conventions  between  the 
contracting  powers;  but  they  have 
the  force  of  law  with  respect  to 
their  subjects.'  These  are  his  very 
words :  '  lis  out  force  de  loi  a  I'egard 
des  sujets,  cousideres  comme  tels; 
and  it  is  very  manifest,'  continues 
he,  '  that  two  sovereigns,  who  enter 
into  a  treaty,  impose,  by  such  treaty, 
an  obligation  on  their  subjects  to 
conform  to  it,  and  in  no  manner  to 
contravene  it.'  It  is  remarkable 
that  the  Avords  made  use  of  by 
Burlamaqui  establish  the  doctrine, 
recognized  by  the  Constitution,  that 
treaties  shall  be  considered  as  the 
law  of  the  land;  and  happy  will  it 
be  for  America  if  they  shall  be  al- 
ways so  considered:  we  sliall  then 
avoid  the  disputes,  the  tumults, 
the  frequent  wars,  we  must  inevi- 
tably be  engaged  in,  if  we  violate 
treaties.  By  our  treaty  wi  th  France, 
we  declare  she  shall  have  all  tiie 
privileges,  in  matters  of  commerce, 
with  the  most  favored  n;ition.  Sup- 
pose a  particular  state  should  think 
proper  to  grant  a  particular  privi- 
lege to  Holland,  which  she  refuses 
to  France;  would  not  this  be  a  vio- 
lation of  the  treaty  with  France? 
It  certainly  would;  and  we  in  this 
state  would  be  answerable  for  tlie 
consequences  attending  such  viola- 
tion by  another  State;  for  we  do 
not  enter  into  treaties  as  separate 
states,  but  as  united  states;  and  all 
the  members  of  the  Union  are  an- 

349 


§208 


TREATY-MAKING  POWER  OF  THE  U.  S.      [CH.  VII. 


that  in  no  case  in  the  Jiistory  of  the  known  world  was  there 
an  instance  of  the  rulers  of  a  republic  being  allowed  to  go 


swerable  for  the  breach  of  a  treaty 
by  any  one  of  them.  South  Caro- 
lina, therefore,  considering  its  sit- 
uation, and  the  valuable  produce  it 
has  to  export,  is  particularly  inter- 
ested in  maintaining  the  sacredness 
of  treaties,  and  the  good  faith  with 
which  they  should  be  observed  by 
every  member  of  the  Union.  But 
the  honorable  gentleman  complains 
that  the  power  of  making  treaties 
is  vested  in  the  President  and  Sen- 
ate, and  thinks  it  is  not  placed  so 
safely  with  them  as  with  the  Con- 
gress under  the  old  Confederation. 
Let  us  examine  this  objection.  By 
the  old  Confederation,  each  state 
had  an  equal  vote  in  Congress,  and 
no  treaty  could  be  made  without 
the  assent  of  the  delegates  from 
nine  states.  By  the  present  Con- 
stitution, each  state  sends  two 
members  to  the  Senate,  who  vote 
per  capita;  and  the  President  has 
power,  with  advice  and  consent  of 
the  Senate,  to  make  treaties,  pro- 
vided two-thirds  of  the  Senate  pres- 
ent concur.  This  inconvenience 
attended  the  old  method:  it  was 
frequently  difficult  to  obtain  a  rep- 
resentation from  nine  states;  and 
if  only  nine  states  were  present, 
thej'  must  all  concur  in  making  a 
treaty.  A  single  member  would 
frequently  prevent  the  business 
from  being  concluded;  and  if  he 
absented  himself.  Congress  had  no 
power  to  compel  his  attendance. 
This  actually  happened  when  a 
treaty  of  importance  was  about  to 
be  concluded  with  tlie  Indians;  and 
several  states,  being  satisfied,  at 
particular  junctures,  that  the  nine 
states  present  would  not  concur  in 
sentiments  on  the  subject  of  a 
treaty,   were    indifferent  whether 

350 


their  members  attended  or  not. 
But  now  that  the  senators  vote  in- 
dividually, and  not  by  states,  each 
state  will  be  anxious  to  keep  a  full 
representation  in  the  Senate;  and 
the  Senate  has  now  power  to  com- 
pel the  attendance  of  its  own  mem- 
bers. We  shall  thus  have  no  de- 
lay, and  business  will  be  conducted 
in  a  fuller  representation  of  the 
states  than  it  hitherto  has  been. 
All  the  members  of  the  Convention, 
who  had  served  in  Congress,  were 
so  sensible  of  the  advantage  attend- 
ing this  mode  of  voting,  that  the 
measure  was  adopted  unanimously. 
For  my  own  part,  I  think  it  infi- 
nitely preferable  to  the  old  method. 
So  much  for  the  manner  of  voting. 
"  Now  let  us  consider  whether  the 
power  of  making  treaties  is  not  as 
securely  placed  as  it  was  before. 
It  was  formerly  vested  in  Congress, 
who  were  a  body  constituted  by  the 
legislatures  of  the  different  states 
in  equal  proportions.  At  present, 
it  is  vested  in  a  President,  who  is 
chosen  by  the  people  of  America, 
and  in  a  Senate,  whose  members 
are  chosen  by  the  state  legislatures, 
each  legislature  choosing  two  mem- 
bers. Surely  there  is  greater  secu- 
rity in  vesting  this  power  as  the 
present  Constitution  has  vested  it, 
than  in  any  other  body.  Would 
the  gentleman  vest  it  in  the  Presi- 
dent alone?  If  he  would,  his  as- 
sertion that  the  power  we  have 
granted  was  as  dangerous  as  the 
power  vested  by  Parliament  in  the 
proclamations  of  Henry  VIII, 
might  have  been,  perhaps,  war- 
ranted. Would  he  vest  it  in  the 
House  of  Representatives?  Can 
secrecy  be  expected  in  sixty-five 
members?     The    idea    is  absurd. 


CH.  vn.] 


THE  STATE  CONVENTIONS. 


§  208 


so  far  and  that  even  the  most  arbitrary  kings  possessed 
nothing  like  the  treaty-making  power  vested  in  the  Execu- 
tive and  Senate.^  The  records  of  the  South  Carolina  discus- 
sions, as  they  have  been  preserved  in  Elliot's  debates,  show 
that  the  treaty-making  power  was  one  of  the  principal  causes 
of  objection  to  calling  a  State  constitutional  convention. 
Mr.  Pringle  (the  Speaker)  spoke  of  the  great  power  that  the 
President  and  Senate  might  have,  declaring  that  it  gave 
scope  to  a  great  deal  of  declamation  upon  the  danger,  but 
he  conceived  that  there  must  be  mistakes  and  stated  that 
the  making  of  treaties  is  justly  a  part  of  the  prerogative  of 
the  Executive  as  they  must  be  conducted  with  despatch  and 
secrecy,  nor  did  he  think  that  the  apprehended  dangers 
could  ensue  from  vesting  the  treaty-making  power  with  the 
President  and  the  Senate. 

He  took  a  different  view  from  the  other  gentlemen  in  re- 
gard to  the  effect  of  treaties  upon  laws ;  in  regard  to  this  he 
said :  "  Although  the  treaties  they  make  may  have  the  force  of 
laws  when  made,  they  have  not,  therefore,  legislative  power. 
It  would  be  dangerous,  indeed,  to  trust  them  with  the  power 
of  making  laws  to  affect  the  rights  of  individuals ;  for  this 
might  tend  to  the  oppression  of  individuals,  who  could  not 
obtain  redress.  All  the  evils  would,  in  that  case,  flow  from 
blending  the  legislative,  executive,  and  judicial  powers. 
This  would  violate  the  soundest  principles  of  policy  and  gov- 
ernment. It  is  not  with  regard  to  the  power  of  making 
treaties  as  of  legislation  in  general.  The  treaties  will  affect 
all  the  individuals  equally  of  all  the  states.  If  the  President 
and  Senate  make  such  as  violate  the  fundamental  laws,  and 
subvert  the  Constitution,  or  tend  to  the  destruction  of  the 


Besides,  their  sessions  will  proba- 
bly last  only  two  or  three  months 
in  the  year;  therefore,  on  that  ac- 
count, they  would  be  a  very  unfit 
body  for  negotiation  whereas  the 
Senate,  from  the  smallness  of  its 
numbers,  from  the  equality  of 
power  which  each  state  has  in  it, 
from  the  length  of  time  for  which 
its  members  are  elected,  from  the 
long  sessions  they  may  have  with- 
out   any  great    inconvenience    to 


themselves  or  constituents,  joined 
with  the  president,  who  is  the  fed- 
eral head  of  the  United  States,  form 
together  a  body  in  whom  can  be 
best  and  most  safely  vested  the 
diplomatic  power  of  the  Union." 
Elliot's  Debates,  vol.  IV,  pp.  277- 
281. 

§208. 

1  Elliot's  Debates,  vol.  TV,  p.  266; 
this  was  in  reply  to  General  Pinck- 
ney's  first  speech. 

351 


§  210  TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  Vn. 

happiness  and  liberty  of  the  states,  the  evils,  equally  oppress- 
ing all,  will  bo  removed  as  soon  as  felt,  as  those  who  are  op- 
pressed have  the  power  and  means  of  redress.  Such  treaties, 
not  being  made  with  good  faith,  and  on  the  broad  basis  of 
reciprocal  interest  and  convenience,  but  by  treachery  and  a 
betraying  of  trust,  and  by  exceeding  the  powers  with  which 
the  makers  were  intrusted,  ought  to  be  annulled.  No  nations 
would  keep  treaties  thus  made.  Indeed,  it  is  too  much  the 
practice  for  them  to  make  mutual  interest  and  convenience 
the  rule  of  observation,  or  period  of  duration.  As  for  the 
dano-er  of  repealing  the  instalment  law,  the  gentleman  has 
forgot  that  one  article  ordains  that  there  shall  be  no  retro- 
spectlve  law.  The  President  and  Senate  will,  therefore, 
hardly  ever  make  a  treaty  that  w^ould  be  of  this  kind."^ 

§  209.  Other  views  expressed  on  treaty-malting  power. 
— Dr.  David  Ramsay  asked  daring  the  discussion  some  very 
pertinent  questions  and  inquired,  whether  "  the  gentleman 
meant  us  ever  to  have  any  treaties  at  all.  If  not  superior 
to  local  laws,  wdio  will  trust  them  ?  Would  not  the  question 
naturally  be,  'Did  you  mean,  when  you  made  treaties,  to 
fulfill  them  ? '  Establish  once  such  a  doctrine,  and  where 
will  you  find  ambassadors  ?  If  gentlemen  had  been  in  the 
situation  of  receiving  similar  information  with  himself,  they 
would  have  heard  letters  read  from  our  ambassadors  abroad, 
in  which  loud  complaints  were  made  that  America  had  be- 
come faithless  and  dishonest.  Was  it  not  f  nil  time  that  such 
conduct  as  this  should  be  amended ? "^ 

There  were  many  other  views  expressed  during  the  ad- 
dresses in  this  debate,  on  both  sides  of  the  question,  some 
of  the  members  taking  very  extreme  views.  The  result  of 
the  debate  in  the  Legislature  foreshadowed  the  result  in  the 
convention. 

§  210.  Constitution  ratified  by  South  Carolina.— The 
convention  which  met  at  Charleston  on  May  12th,  1788,^ 
on  May  21st,  ratified  the  Constitution  by  a  vote  of  149  to 
73}  The  records  of  the  debate  in  the  Legislature  are  much 
fuller  than  those  of  the  proceedings  of  the  constitutional 


2  Elliot's  Debates,  vol.  IV,  p.  269. 

§209. 

ildem,  p.  270. 

352 


§210. 

1  Elliot's  Debates,  vol.  IV,  p.  317. 

2  Idem,  p.  340. 


CH.  VII.]  THE    STATE   CONVENTIONS.  §  212 

convention ;  the  records  of  the  convention  show,  however, 
that  the  questions  relating  to  the  treatj'-making  power  as- 
sumed great  importance  in  the  consideration  of  the  Consti- 
tution, and  that  the  people  of  South  Carolina  were  fully 
aware  of  the  far-reaching  effect  which  that  power  might 
have  upon  the  local  affairs  of  States,  and  individuals. 

§211.  Constitutional  convention  meets  in  Virginia. — 
In  Virginia  the  constitutional  convention  met  at  llichmond 
June  2,  1788  ;  the  Honorable  Edmund  Pendleton  was  elected 
President.^  The  convention  continued  in  session  for  over 
three  weeks,  the  Constitution  being  finally  ratified,  on 
June  25th,  after  great  opposition,  by  a  vote  of  89  to  79  ;  al- 
though the  ratification  of  the  Constitution  as  proposed  Avas 
unconditional,  numerous  amendments  were  suo-o-ested  and 
recommended,  and  many  of  them  were  subsequently  incor- 
porated in  the  amendments  approved  by  the  first  Congress.^ 
The  ratification  of  Virginia,  however,  contained  certain  res- 
ervations as  to  the  right  of  A^irginia  to  resume  the  delegated 
powers  whenever  the  same  should  be  perverted  to  their  in- 
jury or  oppression.^ 

The  proceedings  of  the  constitutional  convention  of  Vir- 
ginia are  the  most  elaborately  reported  of  all  of  the  State 
conventions,  the  record  comprising  an  entire  volume  of  El- 
liot's Debates  of  over  650  pages.  It  will,  therefore,  be  im- 
possible in  a  summary  of  this  nature  to  refer  at  length  to  all 
the  references  which  were  made  to  the  treaty-mnking  power; 
extracts  of  sufficient  length  and  number  will  be  given  from, 
and  references  made  to,  the  speeches  on  both  sides  of  the 
question,  however,  to  show  that  the  extent  of  the  treaty- 
making  power  as  vested  in  the  Central  Government  was  one 
of  the  principal  topics  of  discussion,  and  that  the  Convention 
ratified  the  Constitution  with  full  knowledge  of  the  irrcat 
power  that  was  given  by  it  in  tliis  respect. 

§  212.  Opposition  led  by  Patrick  Henry The  opposition 

to  the  ratification  was  led  by  Patrick  Henry,  then  52  years 
of  age  and  in  the  height  of  his  unbounded  popularity,  which 


§211. 

1  Elliot's  Debates,  vol.  Ill,  p.  1 


-Elliot's      Debates,     vol.      Ill, 
pp.  659,  et  seq. 
3  Idem,  p.  650. 

23  353 


§212 


TREATY-IMAKING  POWER  OF  THE  U.  S.       [CH.  VU. 


he  used  to  the  utmost  to  defeat  the  Constitution,^     He,  who, 
when  the  independence  of  the  Union  was  in  jeopardy,  had 


§  212. 

1  '•  They  were  led,  as  I  have  al- 
ready said  they  were  to  be,  by  Pat- 
rick Henry,  whose  reputation  had 
suffered  no  abatement  since  the 
period  when  he  blazed  into  the 
darkened  skies  of  the  Revolution — 
when  his  untutored  eloquence 
electrified  the  heart  of  Virginia, 
and  became,  as  has  been  well  said, 
even  '  a  cause  of  the  national  inde- 
pendence.' He  had  held  the  highest 
honors  of  the  state,  but  had  retired, 
poor,  and  worn  down  by  twenty 
years  of  public  service,  to  rescue 
his  private  affairs  by  the  practice 
of  a  profession  which,  in  some  of 
its  duties,  he  did  not  love,  and  for 
which  he  had,  perhaps,  a  single 
qualification  in  his  amazing  orator- 
ical powers.  His  popularity  in 
Virginia  was  unbounded.  It  was 
the  popularity  that  attends  genius, 
when  thrown  with  heart  and  soul, 
and  with  every  impulse  of  its  be- 
ing, into  the  cause  of  popular  free- 
dom; and  it  was  a  popularity  in 
which  reverence  for  the  stern  inde- 
pendence and  the  self-sacrificing 
spirit  of  the  patriot  was  mingled 
with  admiration  for  the  splendid 
gifts  of  oratory  which  Nature,  and 
Nature  alone,  liad  bestowed  upon 
him.  But  Mr.  Henry  was  rightly 
appreciated  by  his  contemporaries. 
They  knew  that,  though  a  wise 
man,  his  wisdom  lacked  compre- 
hensiveness, and  that  the  mere 
intensity  with  which  he  regarded 
the  ends  of  public  liberty  was  likely 
to  mislead  his  judgment  as  to  the 
means  by  which  it  was  to  be  secured 
and  upheld.  The  chief  apprehen- 
sion of  his  opponents,  on  this  im- 
portant  occasion,  was  lest  the  power 
of  his   eloquence  over  the  feelings 

354 


or  prejudices  of  his  auditory  might 
lead  the  sober  reflections  of  men 
astray. 

"  He  was  at  this  time  fifty-two 
years  of  age.  Although  feeling 
or  affecting  to  feel  himself  an  old 
and  broken  man,  he  was  yet  un- 
doubtedly master  of  all  his  natural 
powers.  Those  powers  he  exerted 
to  the  utmost  to  defeat  the  Con- 
stitution in  the  convention  of  Vir- 
ginia. He  employed  every  art  of 
his  peculiar  rhetoric,  every  resource 
of  invective,  of  sarcasm,  of  appeal 
to  the  fears  of  his  audience  for 
liberty;  every  dictate  of  local  pre- 
judice and  state  pride.  But  he  em- 
ployed them  all  with  the  most  sin- 
cere conviction  that  the  adoption 
of  the  proposed  Constitution  would 
be  a  wrong  and  dangerous  step. 
Xor  is  it  surprising  that  he  should 
have  so  regarded  it.  He  had  formed 
to  himself  an  ideal  image  which 
he  was  fond  of  describing  as  the 
American  spirit.  Tliis  national 
spirit  of  liberty,  erring  perhaps  at 
times,  but  in  the  main  true  to  right 
and  justice  as  well  as  to  freedom, 
was  with  him  a  kind' of  guardian 
angel  of  the  republic.  He  seems  to 
have  considered  it  able  to  correct  its 
own  errors  without  the  aid  of  any 
powerful  system  of  general  govern- 
ment— capable  of  accomplishing  in 
peace  all  that  it  had  unquestionably 
effected  for  the  country  in  war.  As 
he  passed  out  of  the  troubles  and 
triumphs  of  the  Revolution  into  the 
calmer  atmosphere  of  the  Confeder- 
ation, his  reliance  on  this  American 
spirit,  and  his  jealousy  for  the 
maxims  of  public  liberty,  led  him  to 
regard  that  system  as  perfect,  be- 
cause it  had  no  direct  legislative  au- 
thority."     Curtis'     Constitutional 


CH.  VII.]  THE   STATE   CONVENTIONS.  §  214 

declared  that  he  was  not  the  less  a  Yirginian  because  he  was 
an  American,  now  took  the  leadership  of  the  State's  rights 
side  of  the  controversy  and  became  one  of  the  most  ardent 
advocates  which  that  doctrine  has  ever  had ;  he  declared 
that  he  could  not  endure  the  thought  of  a  government  ex- 
ternal to  that  of  Virginia,  and  yet  possessing  the  power  of 
direct  taxation  over  the  people  of  his  State ;  he  regarded 
with  utter  abhorrence  the  idea  of  laws  binding  upon  the 
people  of  Virginia  made  by  other  people  of  the  United  States. 

Opposing  every  element  of  nationality,  he  objected  to  the 
preamble  and  asked  by  what  authority  the  delegates  to  the 
Constitutional  Convention  had  used  the  expression,  "  We, 
the  People,"  instead  of  "  We,  the  States."  ^  He  charged  and 
predicted  that  eventually  the  government  would  become  a 
monarchy,  and  as  expressed  by  Elliott,  "  strongly  and  pathet- 
ically expatiated  on  the  probability  of  the  President's  en- 
slaving America  and  the  horrible  consequences  that  must 
result."^ 

§  213.  Governor  Randolph's  position. — He  was  answered 
by  Governor  Eandolph,  who  had  declined  to  sign  the  Con- 
stitution, as  a  member  of  the  Federal  Convention,  but  hav- 
ing realized  that  the  Constitution,  as  submitted  to  the  States, 
must  either  be  ratified,  or  the  Union  would  be  dissolved, 
patriotically  waived  his  personal  feelings  and  made  every 
exertion  for  its  ratification,  and  in  so  doing  greatly  aided 
the  cause  in  the  Virginia  convention.^ 

§  214.  Opposing  forces  in  Virginia  convention.— The  de- 
bate thus  opened  by  Patrick  Henry  and  Edmund  Kandolph 
was  continued  by  them  throughout  the  session,  Rawlins 
Lowndes,  Colonel  Mason,  Mr.  Grayson  and  Mr.  Nicholas 
opposing  the  Constitution  on  various  grounds,  while  James 
Madison,  James  Monroe,  John  Eutledge,  John  Marshall  and 
Edmund  Pendleton,  with  the  able  assistance  of  the  friends 
of  ratification,  finally  overcame  the  tremendous  tide  of  op- 
position which  had  been  raised  by  these  opponents  to  the 
Union,  and  thus  achieved  one  of  the  greatest  victories  for  rati- 


History  of  the  United  States,  vol.  1, 
pp.  66:}-GC4. 

2  Elliot's  Debates,  vol.  Ill,  p.  22. 

8  Idem,  p.  60. 


§213. 

1  Elliot's  Debates,  vol.  Ill,  p.  652, 
and  see  also  §  192,  chap.  VI,  p.  330, 
ante. 

355 


§  215  TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  VII. 

fication  of  the  Constitution.  Undoubtedly  the  great  weight 
of  Yu'ginia's  adoption  of  the  Constitution  turned  the  scale 
in  the  few  remaining  States  in  which  the  question  was  under 
consideration  and  insured  be_yond  all  peradventure  the  rati- 
fication, not  only  by  the  requisite  number  of  States  to  put 
the  instrument  into  force,  but  also  to  make  it  a  practical 
measure ;  for  even  with  the  co-operation  of  nine  States  it 
would  have  been  impossible  to  have  carried  out  the  plan  of 
Union,  without  the  acquiescence  of  Virginia  and  New  York.^ 
§  215.  Mr.  Madison's  views. — Mr.  Madison  spoke  of  the 
necessity  of  a  strong  government,  especially  in  regard  to  our 
foreign  relations,  referring  to  tbe  weakness  of  the  Confedera- 
tion in  this  respect,  he  said  :  "  The  Confederation  is  so  notori- 
ously feeble,  that  foreign  nations  are  unwilling  to  form  any 
treaties  with  us ;  they  are  apprized  that  our  general  govern- 
ment cannot  perform  any  of  its  engagements,  but  that  they 
may  be  violated  at  pleasure  by  any  of  the  states.  Our  viola- 
tion of  treaties  already  entered  into  proves  this  truth  unequi- 
vocally. No  nation  will,  therefore,  make  any  stipulations 
with  Congress,  conceding  any  advantages  of  importance  to  us : 
they  will  be  the  more  aveKse  to  entering  into  engagements 
with  us,  as  the  imbecility  of  our  government  enables  them  to 
derive  many  advantages  from  our  trade,  without  granting  us 
any  return.  But  were  this  country  united  by  proper  bands, 
in  addition  to  other  great  advantages,  we  could  form  very 
beneficial  treaties  with  foreign  states.  But  this  can  never 
happen  without  a  change  in  our  system.  "Were  we  not 
laughed  at  by  that  minister  of  that  nation,  from  which  we 
may  be  able  yet  to  extort  some  of  the  most  salutary  measures 
for  this  country  ?  Were  we  not  told  that  it  was  necessary 
to  temporize  till  our  government  acquired  consistency.  Will 
any  nation  relinquish  national  advantages  to  us?  You  will 
be  greatly  disappointed,  if  you  expect  any  such  good  effects 
from  this  contemptible  system.  Let  us  recollect  our  con- 
duct to  that  country  from  which  we  have  received  the  most 
friendly  aid.  How  have  we  dealt  with  that  benevolent  ally  ? 
Have  we  complied  with  our  most  sacred  obligations  to  that 

§  214.  I  in  session  in  New  York,  see  Curtis' 

1  For  the  effect  of  the  ratification    Constitutional     History     of     the 
by  Virginia  on  the  convention  then  <  United  States,  vol.  I,  p.  680. 

356 


CH.  VII.]  THE  STATE   CONVE^fTlOKS.  §  216 

nation  ?  Have  we  paid  the  interest  punctually  from  year  to 
year?  Is  not  the  interest  accumulating,  Avhile  not  a  shilling 
is  discharged  of  the  principal?  The  magnanimity  and  for- 
bearance of  that  ally  are  so  great  that  she  has  not  called 
upon  us  for  her  claims,  even  in  her  own  distress  and  neces- 
sity. This,  sir,  is  an  additional  motive  to  increase  our  exer- 
tions. At  this  moment  of  time  a  very  considerable  amount 
is  due  from  us  to  that  country  and  others."^ 

§  216.  Mr.  Henry  again  expresses  his  views. — During  the 
debates  Colonel  Mason  reiterated  the  fear  which  he  had  ex- 
pressed in  the  Federal  Convention^  of  the  great  danger  con- 
tained in  the  treaty-making  clause  ;  he  declared  that  a  very 
small  number  of  Senators,  in  collusion  with  the  President, 
could  practically  dismember  the  Union. 

Mr.  Henry  agreed  with  Mr.  Mason  and  "  begged  the  gen- 
tlemen to  consider  the  condition  this  country  would  be  in  if 
two  thirds  of  a  quorum  should  be  empowered  to  make  a  treaty : 
they  might  relinquish  and  alienate  territorial  rights,  and  our 
most  valuable  commercial  advantages.  In  short,  if  anything 
should  be  left  us,  it  would  be  because  the  President  and  sen- 
ators were  pleased  to  admit  it.  The  power  of  making  trea- 
ties, by  this  Constitution,  ill-guarded  as  it  is,  extended  farther 
than  it  did  in  any  country  in  the  world.  Treaties  were  to  have 
more  force  here  than  in  any  part  of  Christendom  ;  for  he 
defied  any  gentleman  to  show  anything  so  extensive  in  any 
strong,  enei-getic  government  in  Europe.  Treaties  rest,  says 
he,  on  the  laws  and  usages  of  nations.  To  say  that  they 
are  municipal,  is,  to  me,  a  doctrine  totally  novel.  To  make 
them  paramount  to  the  Constitution  and  laws  of  the  states, 
is  unprecedented.  I  would  give  them  the  same  force  and 
obligation  they  have  in  Great  Britain,  or  any  other  country 
in  Europe.  Gentlemen  are  going  on  in  a  fatal  career ;  but  I 
hope  they  will  stop  before  they  concede  this  power  unguarded 
and  unaltered."  ^ 


§215. 

1  Elliot's  Debates,  vol.  Ill,  p.  135. 
A  parentlietical  clause  follows  stat- 
ing that  Mr.  Madison  here  mention- 
ed the  amount  due  to  different  for- 


eign nations.  The  amounts  are  not 
specified  In  the  report. 

§216. 

1  Elliot's  Debates,  vol.  Ill,  p.  499, 
and  see  also  §  185,  p.  317,  ante. 

2 Elliot's  Debates,  vol.  Ill,  p.  500. 

357 


§  218  TREATY-MAKING  POWER  OF  THE  U.  S.      [CH.  VII. 


§  217.  Mr.  Madison's  reply  to  Mr.  Henry.— Mr.  Madison 
at  this  point  denied  that  the  treaty-making  power  involved 
the  right  of  dismembering  the  Union  ;  ^  in  reading  these  de- 
bates, it  must  be  remembered  that  it  was  the  object  of  the 
opponents  of  the  Constitution  to  exaggerate  the  extent  of 
the  powers  lodged  in  the  Central  Government ;  and  also  that 
its  supporters  endeavored  to  minimize  the  effects  and  extent 
of  those  powers  in  order  that  the  instrument  might  not  be 
rejected  on  the  ground  that  too  extensive  powers  had  been 
reposed  in  the  various  branches  of  the  Central  Government. 

§  218.  Treaty-making  poAver  as  it  affected  Virginia ;  the 
navigation  of  the  Mississippi. — It  must  also  be  remembered 
that  the  effect  of  treaties  upon  the  condition  of  the  Union 
was  more  of  a  real  issue  in  the  Yirginia  convention  than  it 
was  in  any  of  the  other  State  conventions;  the  right  of  the 
navigation  of  the  Mississippi  at  that  time  was  the  burning 
question  of  the  day ;  negotiations  which  were  then  pending 
with  Great  Britain  and  Spain  in  regard  to  this  important 
subject  were  more  fully  appreciated  in  Virginia  than  in  any 
other  State  because  the}^  had  a  practical,  in  fact  a  vital,  bear- 
ing upon  local  affairs  and  interests ;  Kentucky,  at  that  time, 
formed  the  Western  part  of  Yirginia,  and  extending,  as  it  did, 
to  the  Mississippi,  the  right  of  the  navigation  of  tliat  river  to 
the  Gulf  was  an  absolute  essential  to  its  existence,^ 

The  right,  therefore,  of  the  Federal  Government  to  make 
treaties  with  foreign  powers  which  would  affect  the  great 
highways  of  commerce  was  one  which  was  a  personal  matter 
with  every  delegate  in  the  convention  ;~  Mr.  Grayson,  who 


§217. 

1  Elliot's  Debates,  vol.  Ill,  p.  501. 
§218. 

1  McMaster's  History  of  the  Peo- 
ple of  the  United  States,  vol.  I, 
chapter  IV. 

2  "  Among  the  topics  on  which 
they  expended  a  great  deal  of  force 
was  that  of  the  navigation  of  the 
Mississippi.  They  employed  this 
subject  for  the  purpose  of  influenc- 
ing the  votes  of  members  who  rep- 
resented the  interests  of  that  part 
of  Virginia  which  is  now  Kentucky. 

358 


They  first  extorted  from  Madison 
and  other  gentlemen,  who  had  been 
in  the  Congress  of  the  Confedera- 
tion, a  statement  of  the  negotia- 
tions which  had  nearly  resulted  in 
a  temporary  surrender  of  the  right 
in  the  Mississippi  to  Spain,  They 
then  made  use  of  the  following  ar- 
gument. It  had  appeared,  they 
said,  from  those  transactions,  that 
the  Northern  and  Middle  States, 
seven  in  number,  were  in  favor  of 
bartering  away  this  great  interest 
for  commercial  privileges  and  ad- 


CH.  VII.] 


THE  STATE  CONVENTIONS. 


218 


took  the  lead  on  this  point,  feared  the  power  vested  in  the 
Central  Government  and  that  it  might  use  such  power  in 
some  manner  that  would  impair  the  right  of  navigation 
of  the   Mississippi ;  he  declared  that   the  Constitution,  if 


vantages;  that  those  states,  partic- 
ularly the  Eastera  ones,  would  be 
influenced  further  by  a  desire  to 
suppress  the  growth  of  new  states 
in  the  western  country,  and  to  pre- 
vent the  emigration  of  their  own 
people  thither,  as  a  means  of  re- 
taining the  power  of  governing  the 
Union;  and  that  the  surrender  of 
the  Mississippi  could  be  made  by 
treaty,  under  the  Constitution,  by 
the  will  of  the  president  and  the 
votes  of  ten  senators,  whereas,  un- 
der the  Confederation,  it  never 
could  be  done  without  the  votes  of 
nine  states  in  Congress."  Curtis' 
Constitutional  History  of  the  Uni- 
ted States,  vol.  I,  pp.  671-672. 

"The  Treaty  of  Peace  with 
Gx-eat  Britain  recognized,  as  the 
southern  boundary  of  the  United 
States,  a  line  drawn  from  a  point 
where  the  thirty-first  degree  of 
north  latitude  intersected  the  river 
Mississippi,  along  that  parallel  due 
east  to  the  middle  of  the  river  Ap- 
palachicola;  thence  along  the  mid- 
dle of  that  river  to  its  junction  with 
the  Flint  River;  thence  in  a  straight 
line  to  the  head  of  St.  Mary's  River; 
and  thence  down  the  middle  of  that 
river  to  the  Atlantic  Ocean.  At 
the  time  of  the  negotiation  of  this 
treaty  West  Florida  was  in  the  pos- 
session of  Spain;  and  a  secret  arti- 
cle was  executed  by  the  British  and 
American  plenipotentiaries,  which 
stipulated  that  in  case  Great  Brit- 
ain, at  the  conclusion  of  a  peace 
with  Spain,  should  recover  or  be 
put  in  possession  of  West  Florida, 
the  north  boundary  between  that 
province  and  the  United  States 
should  be  a  line   drawn  from   the 


mouth  of  the  river  Yassous,  where 
it  imites  with  the  river  Mississippi, 
due  east  to  the  river  Appalachicola. 
The  treaty  also  stipulated  that  the 
navigation  of  the  Mississippi,  from 
its  source  to  the  ocean,  should  for- 
ever remain  free  and  open  to  the 
subjects  of  Great  Britain  and  the 
citizens  of  the  United  States. 

"AVhen  the  treaty  came  to  be 
ratified  and  published,  in  1784,  the 
Spanish  government  was  already 
acquainted  witli  this  secret  article. 
Justly  assuming  that  no  treaty  be- 
tween Great  Britain  and  the  United 
States  could  settle  the  boundaries 
between  the  territories  of  the  latter 
power  and  those  of  Spain,  or  give 
of  itself  a  right  to  navigate  a  river 
passing  wholly  through  their  do- 
minions, they  immediately  caused 
it  to  be  signified  to  Congress  that, 
until  the  limits  of  Louisiana  and 
the  two  Floridas  should  be  settled 
and  determined,  by  an  admission 
on  the  part  of  Spain  that  they  had 
been  rightfully  described  in  the 
treaty  with  England,  they  must  as- 
sert their  territorial  claims  to  the 
exclusive  control  of  the  river;  and 
also  that  the  navigation  would  un- 
der no  circumstances  be  conceded, 
while  Spain  held  the  right  to  its 
control.  To  accommodate  these  dif- 
ficulties. Congress  resolved  to  send 
Mr.  Jay,  their  secretary  of  foreign 
affairs,  to  Spain;  but  his  depart- 
ure was  prevented  by  the  arrival  in 
the  United  States  of  Don  Diego 
Guai'doqui,  as  minister  from  Spain, 
charged  with  the  negotiation  of  a 
treaty."  Curtis'  Constitutional 
History  of  the  United  States,  vol.  I, 
pp.  210-211. 

359 


§  219  TREATY-MAKING  POWER  OF  THE  U.  S.       [CH.  Vlt. 

adopted,  would  be  the  great  eharter  of  America  paramount 
to  everj'thing,  and  that  once  having  been  consented  to,  it 
could  not  be  receded  from.  "  Such  is  m}-  repugnance,"  he 
said,  "  to  the  alienation  of  the  right  which  I  esteem  so  im- 
portant to  the  happiness  of  my  country,  that  I  would  object- 
to  this  Constitution  if  it  contained  no  other  defect."^ 

§  219.  Patrick  Henry  on  the  prerogatives  of  the  King 
of  Great  Britain;  other  views.— Questions  as  to  the  ex- 
tent of  the  power  of  the  King  of  Great  Britain  having  been 
raised,  and  the  statement  made  that  he  had  as  much  power 
to  make  treaties  as  was  given  to  the  President,  and  two 
thirds  of  the  Senate,  Patrick  Henry  declared  that  "  he  would 
have  had  no  objections  to  that  plan  if  the  Constitution  had 
made  the  President  a  king."  He  declared,  however,  that 
under  the  treaty  section,  "  the  Constitution  of  the  States 
might  be  most  flagrantly  violated  without  remedy."  ^ 

Governor  Eandolph  claimed  that  the  Constitution  con- 
trolled the  exercise  of  the  functions  granted  under  it,  and 
marked  out  the  powers  to  be  exercised,  and  that  therefore 
the  fourth  article  secured  the  Union  against  any  dismem- 
berment by  means  of  treaties.^ 

The  debate  was  continued  at  the  next  session,  Mr.  Gray- 
son again  maintaining  that  the  treaty-making  clause  in- 
vested the  Federal  Government  with  suflicient  power  to 
give  up  the  Mississippi  River.^ 

George  ]N'icholas,  citing  Blackstone  as  to  the  prerogatives 
of  the  King  of  Great  Britain,  said  that  treaties  made  here, 
if  valid,  would  probably  be  the  supreme  law  of  the  land; 
he  maintained,  however,  no  treaty  could  be  made  that  was 
"  repugnant  to  the  spirit  of  the  Constitution,  or  inconsistent 
with  the  delegated  powers.  The  treaties  they  make  must 
be  under  the  authority  of  the  United  States,  to  be  within 
their  province.  It  is  sufficiently  secured,  because  it  only 
declares  that,  in  pursuance  of  the  powers  given,  they  shall 
be  the  supreme  law  of  the  land,  notwithstanding  anything 
in  the  Constitution  or  laws  of  the  particular  States."* 


3  Elliot's  Debates,  vol.  Ill,  p.  502. 
§  219. 

1  Elliot's  Debates,  vol.  Ill,  p.  502. 
360 


2  Idem,  p.  504. 
^  Idem,  p.  505. 
*  Idem,  p.  507. 


CH.  Vn.]  THE   STATE   CONVENTIONS.  §  221 

§  220.  Views  of  Mr.  Corbiii  on  necessity  of  treaty-mak- 
ing powers  in  Central  Grovernmeut. — Mr.  Corbin  "  largely 
expatiated  on  the  propriety  of  vesting  this  power  in  the 
General  Government,  in  the  manner  proposed  by  the  plan 
of  the  Convention.  He  also  contended  that  the  empire  could 
not  be  dismembered  without  the  consent  of  the  part  dis- 
membered.^ .  .  .  He  insisted  that  no  part  of  the  Constitu- 
tion was  less  exceptionable  than  this  ;  and  that  if  there  were 
any  sound  part  in  the  Constitution,  it  was  in  this  clause.  He 
declared  that  the  representatives  were  properly  excluded 
from  the  treaty-making  power  on  account  of  the  impossibil- 
ity of  a  laro^e  house  acting'  in  regard  thereto.  It  would  be 
dangerous  to  give  this  power  to  the  President  alone  ;"  con- 
tinuing he  said :  "It  is  therefore  given  to  the  President  and 
the  Senate  (w^ho  represent  the  states  in  their  individual  ca- 
pacities) conjointly.  In  this  it  differs  from  every  govern- 
ment we  know.  It  steers  witli  admirable  dexterity  between 
the  two  extremes,  neither  leaving  it  to  the  executive,  as  in 
most  other  governments,  nor  to  the  legislative,  which  would 
too  much  retard  such  negotiation."- 

The  object  of  avoiding  the  separate  legislation  by  the  dif- 
ferent States  was  the  keynote  of  his  following  remarks: 
"  But,  say  gentlemen,  all  treaties  made  under  this  Constitu- 
tion are  to  be  the  supreme  law  of  nations ;  that  is,  in  their 
way  of  construction,  paramount  to  the  Constitution  itself, 
and  the  laws  of  Congress.  It  is  as  clear  as  that  two  and  two 
make  four,  that  the  treaties  made  are  to  be  binding  on  the 
states  only.  Is  it  not  necessa-ry  that  they  should  be  binding 
on  the  states?  Fatal  experience  has  proved  that  treaties 
would  never  be  complied  with,  if  their  observance  depended 
on  the  will  of  the  states;  and  the  consequences  would  be 
constant  war.  For  if  any  one  state  could  counteract  any 
treaty,  how  could  the  United  States  avoid  hostihty  with 
foreign  nations  ?  Do  not  gentlemen  see  the  infinite  dangers 
that  would  result  from  it,  if  a  small  part  of  the  community 
could  drag  the  whole  confederacy  into  war?"^ 

§  221.  Patrick  Henry's  views  as  to  effect  of  treaties  on 
States. — Mr.  Henry  again  laid  particular  stress  on  the  effect 

§  220.  I      ■■!  Idem,  pp.  509-510. 

1  Elliot's  Debates,  vol.  Ill,  p.  509.  |      a  idem,  p.  510. 

361 


§  222  TREATV-MAKIMG  POWER  OF  THE  U.  S.       [CH.  VU. 

of  this  treaty  power  upon  the  States,  and  the  superiority 
that  treaty  law  would  have  over  them,  in  many  respects. 
He  said  :  "  We  are  told  that  the  state  rights  are  preserved. 
Suppose  the  state  right  to  territory  be  preserved  ;  I  ask  and 
demand,  How  do  the  rights  of  persons  stand,  when  they 
have  power  to  make  any  treaty,  and  that  treaty  is  para- 
mount to  constitutions,  laws,  and  everything?  When  a  per- 
son shall  be  treated  in  the  most  horrid  manner,  and  most 
cruelly  and  inhumanly  tortured,  will  the  security  of  terri- 
torial rights  grant  him  redress  ?  Suppose  an  unusual  pun- 
ishment in  consequence  of  an  arrest  similar  to  that  of  the 
Eussian  ambassador ;  can  it  be  said  to  be  contrary  to  the 
state  rights  ?  .  .  .  We  are  so  used  to  speak  of  enor- 
mity' of  powers,  that  we  are  familiarized  with  it.  To  me 
this  power  appears  still  destructive ;  for  they  can  make  any 
treaty.  If  Congress  forbears  to  exercise  it,  you  may  thank 
them  ;  but  they  ma}'^  exercise  it  if  they  please,  and  as  they 
please.  They  have  a  right,  from  the  paramount  power  given 
them,  to  do  so.  Will  the  gentleman  say  that  this  power  is 
paramount  to  the  state  laws  only  ?  Is  it  not  paramount  to 
the  Constitution  and  everything  'i  Can  anything  be  para- 
mount to  what  is  paramount  ?  Will  not  the  laws  of  Con- 
gress be  binding  on  Congress,  as  well  as  on  any  particular 
state  ?     Will  they  not  be  bound  by  their  own  acts  ?  "^ 

§  222.  Mr.  Madison's  support  of  Coustitutioual  provi- 
sioiis  as  to  treaties  ;  flual  debate. — Mr.  Madison  again  ex- 
pressed his  approval  of  the  power,  and  declared  that  it 
already  existed  in  the  Confederation,  as  Congress  was  au- 
thorized to  make  treaties,  and  said:  "Many  of  the  states' 
have  recognized  the  treaties  of  Congress  to  be  the  supreme 
law  of  the  land.  Acts  have  passed,  within  a  yescr,  declaring 
this  to  be  the  case.  I  have  seen  many  of  them.  Does  it 
follow,  because  this  power  is  given  to  Congress,  that  it  is 
absolute  and  unlimited  ?  I  do  not  conceive  that  power  is 
given  to  the  President  and  Senate  to  dismember  the  empire, 
or  to  alienate  any  great,  essential  right.  I  do  not  think  the 
whole  legislative  authority  have  this  power.     The  exercise 

§221. 

1  Elliot's  Debates,  vol.  Ill,  pp.  512-514. 
362 


CH.  VII.] 


THE   STATE   CONVENTIONS. 


223 


of  the  power  must  be  consistent  with  the  object  of  the  dele- 
gation."^ 

Later,  Mr.  Dawson  declared  that  the  treaty  power  was 
insufficiently  guarded.^  Mr.  Grayson  reiterated  his  prior 
contention  that  under  that  power  the  Union  could  be  dis- 
membered; treaties  should  be  in  the  hands  of  three-fourths 
of  both  houses  of  Congress.^  At  the  close  of  the  debate  Mr. 
Henrv,  in  making  a  final  stand  against  ratiticatiou,  said : 
"  Another  thing  which  they  have  not  mentioned,  is  the  power 
of  treaties.  Two  thirds  of  the  senators  present  can  make 
treaties  ;  and  they  are,  when  made,  to  be  the  supreme  law  of 
the  land,  and  are  to  be  paramount  to  the  state  constitutions. 
"We  wish  to  guard  against  the  temporary  suspension  of  our 
great  national  rights.  We  wish  some  qualification  of  this 
dangerous  power.  We  wish  to  modify  it.  One  amendment 
which  has  been  wished  for,  in  this  respect  is,  that  no  treaty 
should  be  made  without  the  consent  of  a  considerable  major- 
ity of  both  houses."  *  Mr.  Henry,  however,  was  a  patriot, 
and  after  the  Constitution  was  adopted  as  the  law  of  the 
land  became  one  of  its  loyal  supporters.^ 

§  223.  Constitution  finally  ratified  by  Virginia ;  amend- 
ments suggested. — The  Constitution  was  finally  ratified  in 
the  manner  above  stated ;  an  additional  resolution  was  also 


§222. 

1  Elliot's  Debates,  vol.  Ill,  pp. 
514,  et  seq. 

2  Idem,  p.  610. 
8  Idem,  p.  613. 
*  Idem,  p.  650. 

S"The  conduct  of  Mr.  Henry, 
when  he  saw  that  the  adoption  of 
the  Constitution  was  inevitable, 
was  all  that  might  have  been  ex- 
pected from  his  patriotic  and  un- 
selfish character.  '  If  I  shall  be  in 
the  minority,'  he  said,  '  I  shall  have 
those  painful  sensations  which 
arise  from  a  conviction  of  being 
overpowered  in  a  good  cause.  Yet 
I  will  be  a  peaceable  citizen.  My 
head,  my  hand,  and  my  heart  shall 
be  free  to  retrieve  the  loss  of  lib- 
erty, and  remove  the  defects  of  this 


system  in  a  constitutional  way.  I 
wish  not  to  go  to  violence,  but  will 
wait  with  hopes  that  the  spirit 
which  predominated  in  the  Revolu- 
tion is  not  yet  gone,  nor  the  cause 
of  those  who  are  attached  to  the 
Revoluti(m  yet  lost.  I  shall,  there- 
fore, patiently  wait  in  expectation 
of  seeing  this  government  so 
changed  as  to  be  compatible  with 
the  safety,  liberty,  and  happiness 
of  the  people.'  This  noble  and  dis- 
interested patriot  lived  to  find  the 
Constitution  all  that  he  wislied  it 
to  be,  and  to  enroll  himself,  in  the 
day  of  its  first  serious  trial,  among 
its  most  vigorous  and  earnest  de- 
fenders." Curtis'  Constitutional 
History  of  the  United  States,  p.  682. 

363 


§  224  TREATY-MAKING  POWER  OF  THE  tJ.  S.       [CH.  VII. 


adopted  recommending  certain  amendments,  which  were  to 
be  transmitted  by  the  President  of  the  convention  with  the 
ratification  to  the  United  States  in  Congress  assembled.^ 

Number  Seven  of  the  proposed  amendments  was:  "That 
no  commercial  treaty  shall  be  ratified  without  the  concur- 
rence of  two  thirds  of  the  whole  number  of  the  members  of 
the  Senate;  and  no  treaty,  ceding,  contracting,  restraining, 
or  suspending,  the  territorial  rights  or  claims  of  the  United 
States,  or  any  of  them,  or  their,  or  any  of  their  rights  or 
claims  to  fishing  in  the  American  seas,  or  navifjatino:  the 
American  rivers,  shall  be  made,  but  in  cases  of  the  most  ur- 
gent and  extreme  necessity ;  nor  shall  any  such  treaty  be 
ratified  without  the  concurrence  of  three  fourths  of  the 
whole  number  of  the  members  of  both  houses  respectively."^ 

Certainly  no  one  will  contend  for  a  moment  that  the  full 
extent  of  the  treaty-making  power,  as  vested  in  the  Central 
Government  of  the  United  States,  was  not  thoroughly  un- 
derstood in  the  State  of  Virginia  before  the  Constitution 
was  ratified. 

§  22  i.  Ratiflcation  by  New  Hampshire ;  action  of  Rhode 
Island  ;  Convention  in  New  York. — While  the  convention  in 
Virginia  was  in  progress,  the  convention  in  New  York  com- 
menced ;  the  delegates  assembled  at  Poughkeepsie  on  the  ITth 
of  June.^  During  the  sessions  of  this  conv^ention  the  Constitu- 
tion was  ratified  in  Virginia  on  June  25th,  and  in  New  Hamp- 
shire on  June  21st ;"~  on  the  26th  of  July,  1788,  the  ratification 
of  the  Constitution  by  the  State  of  New  York  made  it  binding 
upon  all  the  States  except  North  Carolina  and  Rhode  Island. 
The  former  did  not  ratifv  the  Constitution  in  its  first  Con- 
vention as  we  shall  see,  and  the  other  rejected  it  by  an  alleged 
popular  vote  but  one  which  could  hardly  be  considered  as 
binding  upon  the  State,  as  the  Fetleralists  practically  refused 


§223. 

1  Elliot's  Debates,  vol.  Ill,  p.  659. 

2  Idem,  p.  660. 
§  224. 

1  Elliot's  Debates,  vol.  II,  p.  205; 
Curtis'  Constitutional  History  of 
the  United  States,  vol.  I,  p.  674. 

^Idem,  p.  677;  see  also  "A  brief 
view  of  the  influences  that  moved 

364 


the  adoption  of  the  Federal  Consti- 
tution by  the  State  of  New  Hamp- 
shire;" an  address  delivered  before 
the  Grafton  and  Coos  Counties 
(N.  H. )  Bar  Association,  by  Albert 
Stillman  Batchellor,  at  the  meeting 
held  at  Berlin,  N.  H.,  January  27, 
1899  (N.  H.  Bar  Association  Pam- 
phlets, vol.  141). 


CH.  VII.] 


THE   STATE   CONVENTIONS. 


§  226 


to  participate  therein ;  subsequently,  however,  better  coun- 
sel prevailed  and  both  States  recognizing  the  impossibility 
of  remaining  outside  of  the  Union  united  with  their  sister 
States,  North  Carolina  on  November  21,  1789,  and  Rhode 
Island  on  May  29,  1790.=^ 

§  225.  Personnel  of  New  York  Convention The  list  of 

65  delegates  composing  the  New  York  convention  contains 
the  names  of  John  Jay,  Alexander  Hamilton,  Eobert  R. 
Livingston,  Governor  George  Clinton,  Lewis  Morris,  Peter 
Van  Ness,  as  well  as  those  of  ma^ny  other  prominent  men 
who  met  and  discussed  the  Constitution  in  its  every  aspect. 

The  report  in  Elliot's  Debates  shows  that  the  laboring  oar 
in  this  convention  was  handled  by  Alexander  Hamilton, 
who  had  to  meet  the  weight  of  all  the  opposing  forces  which 
were  marshaled  by  Governor  Clinton,  who  was  violently 
opposed  to  the  Constitution,  and  who  having  been  elected 
President  of  the  convention,  did  everything  within  his  power 
to  defeat  the  ratification.^ 

§  226.   Treaty-making  power  referred  to The  same 

practical  fear  in  regard  to  the  navigation  of  the  Mississippi 
which  to  so  great  an  extent  had  animated  the  opposition  in 
Virginia  did  not  exist  in  the  State  of  New  York,  and,  there- 
foi-e,  there  was  less  discussion  in  regard  to  the  treaty-making 
power  in  that  convention  than  there  had  been  in  Viro-inia. 
Mr.  G.  Livingston,  however,  expressed  his  fear  that  the  Sen- 
ate might  become  a  dangerous  body  as  the  Senators  possessed 


^See  U.  S.  Statutes  at  Large, 
vol.  I,  pp.  99  and  126,  for  the  stat- 
utes declaring  North  Carolina  and 
Rhode  Island  to  be  States  of  tlie 
Union.  As  to  North  Carolina  see 
§§  227-230,  pp.  .366  et  seq.,  post. 

RATIFICATION    OF   RHODE    ISLAND. 

On  pp.  .334-336,  vol.  I,  of  Elliot's 
Debates  will  be  found  a  lengthy 
ratification  of  the  Constitution  by 
Rhode  Island  which  contains  the 
Constitution  at  length,  a  declara- 
tion of  rights,  a  long  list  of  pro- 
posed amendments,  the  ratification 
of  which  the  senators  and  repre- 


sentatives are  urged  to  procure; 
the  ratification  itself,  however,  was 
absolute  in  form  and  appears  to 
have  been  "  Done  in  Convention," 
at  Newport,  May  29,  1790;  none 
of  the  amendments  referred  to  the 
treaty-making  power.  Curtis'  Con- 
stitutional History  of  the  United 
States,  vol.  1,  pp.  692-697. 

§  225. 

1  Elliot's  Debates,  vol.  II,  pp.  205- 
414;  Curtis' Constitutional  History 
of  the  United  States,  vol.  1,  p.  674 
et  seq.,  and  see  p.  691  for  "  Honors 
paid  to  Hamilton." 

365 


§   227  TREATY-MAKING  POWER  OF  THE  tJ.  S.       [CH.  VU. 

too  much  power  in  their  capacity  as  counsel  to  the  Presi- 
dent ami  in  the  formation  of  treaties,^  and  urged  an  amend- 
ment against  reelections.  Mr.  Lansing  took  the  same  view,^ 
and  Mr.  R.  li.  Livingston  spoke  against  the  proposed  change.^ 
On  the  Tth  of  July,  wliile  the  Convention  was  in  Committee 
of  the  Whole,  Mr.  Lansing,  who  had  been  one  of  the  dele- 
gates to  the  Federal  Convention,  but  who  had  withdrawn 
therefrom,  proposed  the  following  amendments:  "  llesolved, 
as  the  opinion  of  this  Committee  that  no  treaty  ought  to 
operate  so  as  to  alter  the  constitution  of  any  state ;  nor 
ought  any  commercial  treaty  to  operate  so  as  to  abrogate 
any  law  of  the  United  States."  * 

It  does  not  appear  what  action  was  taken  on  this  particu- 
lar recommendation  as  the  reports  are  very  brief ;  subse- 
quently the  Constitution  was  unconditionally  ratified,  but  a 
circular  letter  was  Avritten  to  the  Governors  of  all  the  other 
States  urging  the  adoption  of  certain  amendments  although 
it  does  not  appear  exactly  what  the  amendments  were.^  To 
a  great  extent,  however,  they  were  the  same  as  those  sub- 
mitted by  some  of  the  other  States  and  in  the  list  thereof 
Mr.  Lansing's  amendment  as  to  the  effect  of  treaties  does 
not  appear  ;  the  fact  that  it  was  offered  shows  that  the  effect 
of  treaties  upon  State  laws  was  one  of  the  points  considered 
by  the  convention. 

§  227.  North  Carolina  rejects  the  Constitution ;  Judge 
Iredell's  views  on  treaty-making.— On  July  21,  1788,  the 
constitutional  convention  met  in  Xorth  Carolina,  and  on 
August  2d,  after  a  protracted  debate,  refused  to  ratify  the 
Constitution.^  One  of  the  principal  subjects  of  discussion 
at  this  convention  was  the  treaty-making  powder  vested  in 
Federal  Government ;  amongst  the  delegates  w^as  James  Ire- 
dell, afterwards  an  Associate  Justice  of  the  Supreme  Court, 
and  who  delivered  an  opinion  in  regard  to  the  treaty-making 
power  in  the  case  of  Ware  vs.  Hylton^  hereafter  referred  to.^ 


§226. 

1  Elliot's  Debates,  vol.  II,  p.  287. 

2  Mem,  p.  289. 

3  Mem,  p.  291. 

4  Idem,  p.  409. 

5  Idem,  pp.  413-414. 

366 


§227. 

1  Elliot's  Debates,  vol.  IV,  pp.  1- 
252;  Curtis'  Constitutional  His- 
tory of  the  United  States,  pp.  692, 
et  seq. 

2  Ware  vs.  Hylton,  U.  S.  Sup.  Ct 


CH.  Vn.]  THE   STATE   CONVENTIONS.  §  2Q^ 

It  is  said  that  President  Washington  derived  his  conviction 
of  Iredell's  fitness  for  the  Supreme  Court  bench  from  a 
perusal  of  the  debates  in  the  North  Carolina  convention  and 
of  his  reply  to  George  Mason's  "  Objection  to  the  Constitu- 
tion," which  will  also  be  referred  to  hereafter.^  ]\Ir.  Iredell 
threw  some  light  on  the  discussion  as  to  the  treaty-making 
power  in  the  Federal  Convention  during  his  remarks,  when 
he  said :  "  Suppose  there  had  been  such  a  council  as  was 
proposed  (evidently  referring  to  some  such  suggestion  made 
at  the  Federal  Convention),  consisting  of  thirteen,  one  from 
each  state,  to  assist  the  President  in  making  of  treaties,  etc. ; 
more  general  alarm  would  have  been  excited,  and  stronger 
opposition  made  to  this  Constitution,  than  even  at  present.^ 
§  228.  Views  of  other  delegates. — In  the  course  of  the 
debates  it  was  urged  that  as  "treaties  were  the  supreme 
law  of  the  land  the  House  of  Representatives  ought  to  have 
a  vote  in  making  them  as  well  as  in  passing  them."  Mr.  J. 
M'Do wall  dwelt  at  great  length  upon  the  small  number  of  leg- 
islators, who,  acting  with  the  President,  might  make  a  treaty. 
He  declared  ;  "  These  ten  men  who  constitute  a  quorum  may 
make  treaties  and  alliances.  They  may  involve  us  in  any 
difficulties,  and  dispose  of  us  in  any  manner,  they  please. 
Nay,"  he  continued,  "eight  is  a  majority  of  a  quorum,  and 
can  do  everything  but  make  treaties.  How  unsafe  are  we, 
when  we  have  no  power  of  bringing  those  to  an  account !  it 
is  absurd  to  try  them  before  their  own  body.  Our  lives  and 
property  are  in  the  hands  of  eight  or  nine  men.  Will  these 
gentlemen  entrust  their  rights  in  this  manner? "  ^  Mr.  Davie 
rephed  that  "although  treaties  are  mere  conventional  acts 
between  the  contracting  parties,  yet,  by  the  law  of  nations, 
they  are  the  supreme  law  of  the  land  to  their  respective  citi- 
zens or  subjects.  All  civilized  nations  have  concurred  in 
considering  them  as  paramount  to  an  ordinary  act  of  legisla- 
tion. A  due  observance  of  treaties  makes  nations  more 
friendly  to  each  other,  and  is  the  only  means  of  rendering 
less  frequent  those  mutual  hostilities  which  tend  to  depopu- 
late and  ruin  contending  nations.     It  extends  and  facilitates 


1796,  3  Dallas,  199;  see  also  §  324, 
Vol.  II,  pp.  6,  et  seq, 
3  See  §§  252-253,  posi. 


*  Elliot's  Debates,  vol.  IV,  p.  128. 
§  228. 

1  Elliot's  Debates,  vol.  IV,  p.  119. 
367 


§  230  TREATY-MAKING  POWEB  OF  THE  U.  S.      [CH.  VII. 

that  commercial  intercourse,  which,  founded  on  the  univer- 
sal protection  of  private  property,  has  in  a  measure,  made 
the  world  one  nation.''  -  The  remarks  which  followed  this 
clearly  indicated  that  it  was  understood  that  the  method 
adopted  in  the  treaty  with  Great  Britain  of  urging  State 
legislation  in  reg^ard  to  matters  within  the  domain  of  State 
jurisdiction,  which  the  Federal  Government  might  affect  by 
neofotiations  and  treaties  with  foreign  nations  Avas  considered 
a  failure  and  should  be  forever  avoided  thereafter. 

§  229.  Mr.  Davie's  views  continued. — This  condition  was 
plainly  expressed  in  the  following  remarks  of  Mr.  Davie: 
"  The  power  of  making  treaties  has,  in  all  countries  and  gov- 
ernments, been  placed  in  the  executive  departments.  This 
has  not  only  been  grounded  on  the  necessity  and  reason  aris- 
ing from  that  degree  of  secrec}',  design,  and  despatch,  which 
is  always  necessary  in  negotiations  between  nations,  but  to 
prevent  their  being  impeded,  or  carried  into  effect,  by  the 
violence,  animosity,  and  heat  of  parties,  which  too  often  in- 
fect numerous  bodies.  Both  of  these  reasons  preponderated 
in  the  foundation  of  this  part  of  the  system.  It  is  true,  sir, 
that  the  late  treaty  between  the  United  States  and  Great 
Britain  has  not,  in  some  of  the  states,  been  held  as  the  su- 
preme law^  of  the  land.  Even  in  this  state,  an  act  of  As- 
sembly passed  to  declare  its  validity.  But  no  doubt  that 
treaty  was  the  supreme  law  of  the  land  without  the  sanction 
of  the  Asserablv;  because,  by  the  Confederation,  Congress 
has  power  to  make  treaties.  It  was  one  of  those  original 
rights  of  sovereigntv  which  were  invested  in  them ;  and  it 
was  not  the  deticiency  of  constitutional  authority  in  Con- 
gress to  make  treaties  that  produced  the  necessity  of  a  law 
to  declare  their  validity ;  but  it  was  owdng  to  the  entire  im- 
becility of  the  Confederation."^ 

§  230.  Resolutions  of  North  Carolina  as  to  position  of 
that  State  on  Constitution,  and  relations  to  other  states. — 
Towards  its  close,  the  convention  went  into  Committee  of  the 
Whole  and  adopted  resolutions  to  the  effect  that  a  declaration 

2 Elliot's  Debates,  vol.  IV,  p.  119. 

§229. 

1  Elliot's  Debates,  vol.  IV,  pp.  119-120. 

368 


CH.  VII.] 


THE   STATE   CONVENTIONS. 


§  230 


of  rights  should  be  added  to  the  Constitution  and  also  cer- 
tain other  amendments  before  North  Carolina  could  adopt  it.^ 

One  of  the  proposed  amendments  was  identical  with  the 
corresponding  amendment  proposed  by  tlie  Virginia  con- 
vention in  regard  to  treaties.'^  Another  was  as  follows: 
"  23.  That  no  treaties  which  shall  be  directly  opposed  to  the 
.existing  laws  of  the  United  States  in  Congress  assembled 
shall  be  valid  until  such  laws  shall  be  repealed,  or  made  con- 
formable to  such  treaty  ;  nor  shall  any  treaty  be  valid  which 
is  contradictory  to  the  Constitution  of  the  United  States."^ 

As  the  Committee  of  the  Whole  had  recommended  that 
the  Constitution  should  not  be  ratified  until  the  amendments 
proposed  had  been  made  to  the  Constitution,  the  convention, 
after  passing  a  resolution  that  the  legislature  be  recom- 
mended to  provide  for  levying  imposts  on  goods  imported 
into  North  Carolina  from  the  United  States,  in  case  the 
United  States  should  levy  any  imposts  on  goods  brought 
into  any  of  the  States  from  North  Carolina,  adjourned  sine 
die.* 


§230. 

1  Elliot's  Debates,  vol.  IV,  p.  243. 

^Idem,  p.  245,  aud  see  §  223,  p. 
364,  ante. 

3  Idem,  p.  246. 

*In  Elliot's  Debates,  vol.  IV,  p- 
251,  the  following  record  occurs: 

"August  2,  1788. 

"  Whereas  this  Couvention  has 
thought  proper  neither  to  ratify 
nor  reject  the  Constitution  pro- 
posed for  the  government  of  the 
United  States,  aud  as  Congress  will 
proceed  to  act  under  the  said  Con- 
stitution, ten  States  having  ratified 
the  same,  aud  probably  lay  an  im- 
post on  goods  imported  into  the 
said  ratifying  states, — 

'■'Resolved,  That  it  be  recom- 
mended to  the  legislature  of  this 
state,  that  whenever  Congress  shall 
pass  a  law  for  collecting  an  impost 
in  the  states  aforesaid,  this  state 
enact  a  law  for  collecting  a  similar 
impost  on  goods  imported  into  this 

24 


state,  and  appropriate  the  money 
arising  therefrom  to  the  use  of 
Congress. 

'■'■Resolved,  unanimously,  That  it 
be  recommended  to  the  General  As- 
sembly to  take  effectual  measures 
for  the  redemption  of  the  paper 
currency,  as  speedily  as  may  be, 
consistent  with  the  situation  and 
circumstances  of  the  people  of  this 
state. 

"  Resolved,  unanimously,  That  the 
honorable  the  president  be  re- 
quested to  transmit  to  Congress, 
and  to  the  executives  of  all  the 
States  by  name,  a  copy  of  the  reso- 
lution of  the  Committee  of  the 
whole  Convention  on  the  subject 
of  the  Constitution  proposed  for 
the  government  of  the  United 
States,  concurred  with  by  this  Con- 
vention, together  with  a  copy  of 
the  resolutions  on  the  subject  of 
impost  and  paper  money." 

Another  Convention,  or  a  later 

369 


§231 


TKEATY-MAKING  POWER  OF  THE  U.  S.      [CH.  VII. 


§  231.  Ratification  l)y  eleven  States  makes  Coustitutiou 
effective. — Thus  the  Constitution  by  the  ratification  of  two 
more  than  the  requisite  number  of  States  became  the  founda- 
tion of  the  great  governmental  superstructure  which  has 
since  been  erected  upon  it  and  which  has  successfully  defied 
all  attacks,  practical  and  theoretical,  from  both  internal  and 
external  forces.^ 


meeting  of  the  same  Convention 
appears  to  have  been  held.  In 
Elliot's  Debates,  vol.  I,  p.  333,  the 
following  occurs: 

"Siaie  of  North  Carolina  in  Con- 
vention. 
"Whereas  the  General  Conven- 
tion which  met  in  Philadelphia,  in 
pursuance  of  a  recommendation  of 
Congress,  did  recommend  to  the 
citizens  of  the  United  States  a  Con- 
stitution or  form  of  government  in 
the  following  words,  namely, — 
'We,  the  people,'  &c.  (Here  fol- 
lows the  Constitution  of  the  Uni- 
ted States,  verbatim.)  Resolved, 
That  this  Convention,  in  behalf  of 
the  freemen,  citizens  and  inhabi- 
tants of  the  state  of  North  Caro- 
lina, do  adopt  and  ratifj'  the  said 
Constitution  and  form  of  govern- 
ment. 

"Done  in  Convention  this  21st 
day  of  November,  1789. 

Samuei.  Johnsox, 
President  of  the  Convention. 

J.  Hunt, 
James  Taylor, 

Secretaries. 

On  February  8,  1790  an  act  of 
Congress  was  passed  giving  effect 
to  the  Laws  of  the  United  States 
in  North  Carolina,  1  U.  S.  Stat,  at 
Large,  p.  99.  Other  acts  were  nec- 
essary, but  after  that  date  North 
Carolina  was  on  an  equal  footing 
with  the  other  states. 

§231. 

^  Ruiijications  of  the  Constitution. 

370 


The  Constitution  was  adopted 
by  a  Convention  of  the  States 
September  17,  1787,  and  was  sub- 
sequently ratified  by  the  several 
States,  in  the  following  order,  viz: 
Delaware,  December  7,  1787;  Penn- 
sylvania, December  12,  1787;  New 
Jersey,  December  18, 1787;  Georgia, 
January  2,  1788;  Connecticut,  Jan- 
uary 9,  1788;  Massachusetts,  Feb- 
ruary 6.  1788;  Maryland,  April  28, 

I  1788;  South  Carolina,  May  23,  1788; 
New  Hampshire,  June  21,  1788; 
Virginia,  June  26,  1788;  New  York, 
July    26,    1788;     North    Carolina, 

'November  21,  1789;  Rhode  Island, 
May  29,  1790,  The  State  of  Ver- 
mont, by  convention,  ratified  the 
Constitution  on  the  10th  of  Janu- 
ary, 1791,  and  was,  by  an  act  of 
Congress  of  the  18tli  of  February, 
1791,  "received  and  admitted  into 
this  Union  as  a  new  and  entire 
member  of  the  United  States  of 
America."' 

Ratifications  of  the  Amendments  to 
the  Constitution. 
The  first  ten  amendments  (with 
two  others  which  were  not  ratified 
by  the  requisite  number  of  States) 
were  submitted  to  the  several  State 
Legislatures  by  a  resolution  of 
Congress  which  passed  on  the  25th 
of  September,  1789,  at  the  first  ses- 
sion of  the  First  Congress  and  were 
subsequently  ratified  by  the  Legis- 
latures of  the  requisite  number  of 
States. 


CHAPTER  YIII. 

THE   TEEATT-MAKING    POWER   AS    A    FACTOR   IN   THE   GREAT   NA- 
TIONAL DEBATE  OF  1787-8. 


Section 

2o2 — Grandeur  of  the  Constitu- 
tion as  a  subject  for  study. 

233 — Difficulty  of  selecLiug  ex- 
tracts from  prominent 
writers. 

234 — Constitutional  literature  di- 
vided into  two  classes. 

235 — Pre-ratifioation  literature  a 
large  element  in  procuring 
adojition  of  the  Constitu- 
tion. 

236 — This  chapter  devoted  to 
pre-ratification   literature. 

237 — The  Federalist;  its  appear- 
ance and  its  effect. 

238 — Treaty-making  power  re- 
ferred to  in  the  Federalist 
and  in  other  publications. 

239— The  Federalist,  No.  XXII; 
reference  to  treaties. 

240— The  Federalist,  No.  XXIII; 
the  treaty-making  power 
should  have  no  constitu- 
tional shackles. 

241— The  Federalist,  No. 
XXXIX;  duality  of  the 
Central  Government. 

242— The  Federalist,  No.  XLII; 
treaties  with  foreign  na- 
tions. 

243- The  Federalist,  No.  XLV; 
enlargement  of  congres- 
sional powers. 

244— The  Federalist,  No.  LXIV; 
importance  of  the  treaty- 
making  power. 


Section 

245— The  Federalist,  No.  LXIV; 
same  subject  continued. 

246— The  Federalist,  No.  LXIX; 
the  treaty-making  power 
of  the  United  States  com- 
pared with  that  of  Great 
Britain. 

247— The  Federalist,  No.  LXXV; 
advantages  of  the  United 
States  plan;  treaties  as 
contracts. 

248— The  Federalist,  No.  LXXX; 
treaty  making  power  of 
National  Government  nec- 
essary for  peace  of  the 
Union. 

249— Authorship  of  the  Federal- 
ist. 

250 — Other  publications  prior  to 
ratification. 

251 — Richai'd  Henry  Lee's  oppo- 
sition; the  "Federal  Far- 
mer." 

252 — George  Mason's  protest. 

253 — Judge  Iredell's  answer; 
"Marcus." 

254 — David  Ramsay's  letters; 
"CiVis." 

255 — Public  knowledge  as  to  the 
treaty-making  power  and 
its  effects. 

256 — Importance  of  treaty-mak- 
ing power  ai)preciated  by 
the  people,  and  by  tlie  dele- 
gates to  State  conventions. 

371 


§  234  TREATY-aiAKING  POWER  OF  THE  U.  S.     [CH.  VHI. 

§  232.  Gryudeur  of  the  Coiistitutioii  as  a  subject  for 

study. — There  is  no  grander  subject  for  study,  no  nobler 
theme  for  Hterature,  than  the  Constitution  of  the  United 
States,  not  only  from  historical,  but  also  from  etliical  and 
ethnical  points  of  observation  ;  it  is  no  wonder,  therefore, 
that  it  has  been  the  object  of  thought,  study  and  expression 
of  opinion,  b}'  many  of  the  ablest  legal  scholars,  in  our  own 
country,  and  also  in  those  other  countries,  where  the  prac- 
tical operation  of  the  Constitution  was  watched,  at  first  with 
doubt,  and  afterwards  in  wonder  and  with  admiration.^ 

From  the  day  of  its  promulgation  as  the  finished  work  of 
the  Constitutional  Convention  until  the  present  time,  essa\^s, 
pamphlets,  brochures,  and  commentaries  upon,  and  analyses, 
and  histories  of,  the  Constitution  have  constantly  appeared, 
until  the  published  literature  upon  this  single  subject  would, 
if  it  were  all  collected,  constitute  a  library  of  no  mean  size. 

§  233.  Difficulty  of  selecting  extracts  from  promiueut 
writers. — From  this  great  mass  of  learning  it  is  difficult  to 
select  the  limited  number  of  extracts  for  which  space  can  be 
afforded  in  this  volume ;  while,  however,  only  a  few  will  be 
quoted,  an  attempt  will  be  made  in  culling  these  extracts 
from  a  vast  amount  of  corroborative  expressions,  to  select 
examples  which  will  show  the  general  tendency  of  opinion 
of  the  leading  publicists  upon  the  particular  element  of  the 
subject  which  is  under  discussion. 

§  234.  Coustitutional  literature  divided  into  two  classes. 
— Constitutional  literature  can  be  divided  into  two  classes: 
first,  that  which  appeared  during  the  progress  of  the  State 
conventions,  and  prior  to  the  ratification  of  the  Constitution, 
and  which  Avas  published  for  the  purpose  of  urging,  or  oppos- 
ing, its  adoption,  and  which,  as  was  natural  under  the  circum- 
stances, was  extremely  partisan  in  its  nature,  either  extolling 
the  merits,  or  denouncing  the  demerits,  of  the  Constitution, 


§232. 

1  See  Gladstone's  statement 
quoted  in  §  168,  p.  292,  ante. 

"  The  Federal  Constitution  has 
survived  the  mockery  of  itself  in 
France  and   in   Spanish   America. 


gotten  that,  if  the  whole  of  the 
known  experiments  of  mankind  in 
government  be  looked  at  together, 
there  has  been  no  form  of  govern- 
ment so  unsuccessful  as  tlie  Re- 
publican."    Popular  Guvernnient, 


Its  success  has  been  so  great  and    Henry     Sumner    Maine,    London, 
striking,  that  men  have  almost  for- '  1885,  p.  292. 

372 


CH.  Vin.]  THE   GREAT   NATIONAL   DEBATE. 


§235 


according  to  the  views  of  the  respective  authors ;  second,  that 
which  has  been  written  and  published  since  the  Constitution 
has  become  the  greatest  factor  in  our  organic  law,  and  which 
includes  all  that  has  been  written  for  the  purpose  of  expound- 
ing, interpreting  and  construing  its  various  provisions,  or  re- 
viewing them  from  historical  and  legal  standpoints. 

§  235.  Pre-ratiflcatiou  literature  a  large  element  in  pro- 
curing adoption  of  the  Constitution — To  the  first  class  of 
literature  the  adoption  of  the  Constitution  was  largely  due. 
The  able  work  of  its  sponsors  and  defenders  in  the  State 
constitutional  conventions  was,  of  course,  the  prime  factor 
in  procuring  its  ratification  in  eleven  of  the  thirteen  States ; 
at  the  same  time,  however,  that  the  State  conventions  were 
in  progress  a  great  national  debate  was  conducted  in  the 
newspapers,  and  also  by  the  publicists  of  the  time.  It  was 
an  age  of  pamphleteering;  many  of  the  most  prominent 
Federalists  and  Anti-Federalists  published  their  views  on  the 
subject  under  assumed  names — generally  classic,  but  some- 
times provincial — according  to  the  then  prevalent  custom.* 
The  records  of  this  great  debate  form  a  valuable  part  of  our 
National  literature,  and  in  collecting,  collating  and  publish- 
ing them  in  a  convenient  and  lasting  form  Paul  Leicester 


§235. 

1  The  following  names  appear  in 
Ford's  Collection  of  Essays  and 
Pamphlets:  "Cassius,"  supposed 
to  be  written  by  James  Sullivan; 
"Agrippa,"  credited,  though  not 
definitely,  to  James  Winthrop;  "A 
Landholder,"  generally  credited  to 
Oliver  Ellsworth;  "  ACouutryraan" 
and  "  ACitizen  of  New  Ilaven,"  both 
credited  to  Roger  Sherman ;  "  Cato," 
credited  to  George  Clinton;  "  Cje- 
sar,"  credited  to  Alexander  Hamil- 
ton; "Sydney,"  credited  to  Robert 
Yates;  "Caution,"  credited  to 
Samuel  Chase;  "A  Friend  of  the 
Constitution,"  credited  to  Daniel 
Carroll;  "A  Plaindealer,"  credited 
to  Roane  Spencer;  "  A  Letter  of  a 
Steady  and  Open  Republican," 
credited  to  Charles  Pinckney;  "A 


Federal  Farmer,"  credited  to  Rich- 
ard Henry  Lee;  "  Marcus,"  credited 
to  James  Iredell;  "Civis,"  cred- 
ited to  David  Ramsay;  •'  A  Colum- 
bian Patriot,"  credited  toElbridge 
Gerry;  "A  Citizen  of  America," 
credited  to  Noah  Webster;  "A 
Citizen  of  New  Vork,"  credited  to 
John  Jay;  "A  Plebeian,"  credited 
to  Melancthon  Smith;  "A  Citizen 
of  Philadelphia,"  credited  to  Pele- 
tiah  Webster;  "Fabius,"  credited 
to  John  Dickinson;  "Aristides," 
credited  to  Alexander  Contee  Han- 
son; "  An  Amei-ican  Citizen,"  cred- 
ited to  Tench  Coxe;  letters  of  Ed- 
mund Randolph,  James  Wilson, 
Luther  Martin,  Hugh  Williamson, 
and  others  appeared  over  their  own 
names. 

373 


§  237  TREATY-MAKING  POWER  OF  THE  U.  S.     [CH.  Vni. 

Ford  has  rendered  an  important  service  to  his  countiy,  and 
one  which  is,  and  always  will  be,  appreciated  by  students  of 
constitutional  history.^ 

§  230.  TJiis  chapter  devoted  to  pre-r.atiflcatiou  literature. 
— This  chapter  will  be  exclusively  devoted  to  the  literature 
of  the  pre-ratilication  period,  and  the  succeeding  chapter  to 
that  which  has  been  produced  since  the  Constitution  became 
the  law  of  the  land. 

§  237.  The  Federalist ;  its  appearance  and  its  effect. — 
The  foremost  position  in  the  list  of  pre-ratification  litera- 
ture must  be  given  to  the  eighty -five  numbers  of  the  Federal- 
ist,^ which,  appearing  under  the  single  assumed,  and  at  that 


2  The  best  collection  of  these  pam- 
phlets can  be  found  in  two  volumes : 

Pamphlets  on  the  Constitution 
of  the  United  States,  published 
during  its  Discussion  by  the  Peo- 
ple, 1787-1788,  edited  with  notes  and 
a  Bibliography,  by  Paul  Leicester 
Ford,  Brooklyn,  N.  Y.  1888. 

Essays   on   the    Constitution   of 


An  extensive  bibliography  of  this 
class  of  Constitutional  literature 
will  be  found  at  pp.  385-441  of  the 
"Pamphlets,"  which  will  also  be 
found  as  an  appendix  to  the  second 
volume  of  Curtis'  Constitutional 
History  of  the  United  States. 

Some  of  the  pamphlets  and  es- 
says published  in  Pennsylvania  will 


the  United  States,  published  dur-    be  found  at  the  end  of  McMaster 


ing  its  Discussion  by  the  People, 
1787-1788,  edited  by  Paul  Leices- 
ter Ford,  Brooklyn,  N.  Y.,  His- 
torical Printing  Club,  1892. 

§237. 

NOTES  OX  THE  FEDERALIST. 


and  Stone's  Pennsylvania  and  the 
Federal  Constitution. 

See  also  §  250  and  note  thereun- 
der, p.  387,  post. 


1  EDITIONS. 

There  are  over  twenty-four  different  editions  of  the  Federalist  enu- 
merated in  Paul  Leicester  Ford's  bibliography  of  the  Ct)nstitution,  com- 
piled in  1888  and  included  as  an  appendix  to  his  Pamphlets  on  the  Consti- 
tution. Ford's  bibliography  is  also  found  at  pp.  709,  et  seq.  of  volume  II 
of  Curtis'  Constitutional  History  of  the  United  States;  a  list  of  24  edi- 
tions will  also  be  found  in  Lodge's  Federalist,  pp.  xxxv,  et  seq.  The 
author  of  this  volume  has  consulted  four  editions  of  the  Federalist, 
compiled  and  annotated  respectively,  by  Henry  B.  Dawson,  Henry  Cabot 
Lodge,  Paul  Leicester  Ford  and  J.  C.  Hamilton.  References  will  not 
be  given  in  notes  to  the  extracts  from  the  Federalist  in  this,  and  the 
succeeding  sections,  as  editions  vary  as  to  paging,  but  the  numbers  are 
practically  the  same  in  all;  the  only  change  being  that  the  insertion  of 
No.  XXX  in  modern  editi(ms  makes  a  difference  of  one  in  subsequent 
numbers  (see  Dawson's  edition,  p.  Iv).  The  author  lias  followed  the 
text  in  the  edition  edited  by  Henry  Cabot  Lodge  and  published  by  G.  P. 
Putnam's  Sons,  New  York  and  London,  1894. 

374 


CH.  Vni.]         THE   GREAT   NATIONAL   DEBATE.  §  237 

time  unrecognized,  name  of  Publius,  stand  as  a  monument  to 
the  joint  and  co-operating  genius  of  Hamilton,  Madison  and 
Jay,  whose  efforts  as  delegates  to  the  Federal  and  State  con- 
ventions, and  as  authors  of  the  Federalist,  undoubtedly  ac- 
complished more  practical  results  than  those  of  any  other 
three  men  in  originally  framing  the  Constitution  in  the  Fed- 
eral Convention,  and  finally  procuring  its  ratification  by  the 
States.  It  not  only  served  its  purpose  in  America,  in  advo- 
cating the  adoption  of  the  Constitution,  but  it  has  also  taken 
its  place  in  Europe  as  a  text  book  of  high  authority  on  popu- 
lar government.^    The  Supreme  Court  of  the  United  States 

2  AN  ENGLISH  VIEW  OF  THE  FEDERALIST. 

"  The  antecedents  of  a  body  of  institutions  like  this,  and  its  mode  of 
growth,  manifestly  deserve  attentive  study;  and  fortunately  the  mate- 
rials for  the  inquiry  are  full  and  good.  The  papers  called  the  '  Feder- 
alist,' which  were  published  in  1787  and  1788  by  Hamilton,  Madison, 
and  Jay,  but  which  were  chielly  from  the  pen  of  Hamilton,  were  origi- 
nally written  to  explain  the  new  Constitutlou  of  the  United  States,  then 
awaitiug  ratification,  and  to  dispel  misconstructions  of  it  which  had  got 
abroad.  They  are  thus,  undoubtedly,  an  ex  x>ost  facto  defence  of  the 
new  institutions,  but  they  show  us  with  much  clearness  either  the  route 
by  which  the  strongest  minds  among  the  American  statesmen  of  that 
period  had  traveled  to  the  conclusions  embodied  in  the  Constitution,  or 
the  arguments  by  which  they  had  become  reconciled  to  them.  The 
'Federalist'  has  generally  excited  something  like  enthusiasm  in  those 
who  have  studied  it,  and  among  these  there  have  been  some  not  at  all 
given  to  excessive  eulogy.  Talleyrand  strongly  recommended  it;  and 
Guizot  said  of  it  that,  intlie  application  of  the  elementary  principles  of 
government  to  practical  administration,  it  was  the  greatest  work  known 
to  him.  An  early  number  of  the  'Edinburgh  Review'  (No.  24),  de- 
scribed it  as  a  '  work  little  known  in  Europe,  but  which  exhibits  a  pro- 
fundity of  research  and  an  acuteness  of  understanding  wliicli  would 
have  done  honour  to  the  most  illustrious  statesmen  of  modern  times.' 
The  American  commendations  of  the  'Federalist'  are  naturally  even 
less  qualified.  '  I  know  not,'  wrote  Chancellor  Kent,  'of  any  work  on 
the  principles  of  free  government  that  is  to  bo  compared  in  instruction 
and  in  intrinsic  value  to  this  small  and  unpretending  volume  of  the 
'Federalist;'  not  even  if  we  resort  to  Aristotle,  Cicero,  Machiavel,  Mon- 
tesquieu, Milton,  Locke,  or  Burke.  It  is  equally  admirable  in  the  depth 
of  its  wisdom,  the  comprehensiveness  of  its  views,  the  sagacity  of  its  re- 
flections, and  the  freshness,  patriotism,  candonr,  simplicity,  and  elo- 
quence, with  which  its  truths  are  uttered  and  recommended.'  Those 
who  liave  attentively  read  these  papers  will  not  think  such  praise 
pitched,  on  the  whole,  too  high.  Perhaps  the  part  of  it  least  thor- 
oughly deserved  is  that  given  to  their  supposed  profundity  of  research. 

375 


§  237  TREAT Y-MAKIXG  POWER  OF  THE  TJ.  S.     [CH.  YIJI. 

has  Oil  more  than  one  occasion  referred  to  it  in  decidino;  con- 

There  are  few  traces  in  the  'Federalist'  of  familiarity  with  previous 
speculations  on  politics,  except  those  of  Montesquieu  in  the  'Esprit  des 
Lois,'  the  popular  book  of  that  day.  The  writers  attach  the  greatest 
importance  to  all  Montesquieu's  opinions.  They  are  much  discom- 
posed by  his  assertion,  that  Republican  government  is  necessarily  asso- 
ciated with  a  small  territory,  and  they  are  again  comforted  by  his  admis- 
sion, that  this  difficulty  might  be  overcome  by  a  confederate  Keptiblic. 
Madison  indeed  had  the  acuteness  to  see  that  Montesquieu's  doctrine  is 
as  often  jjolemical  as  philosophical,  and  that  it  is  constantly  founded 
on  a  tacit  contrast  between  the  institutions  of  his  own  country,  which 
he  disliked,  with  those  of  England,  which  he  admired.  But  still  his 
analysis,  as  we  shall  hereafter  point  out,  had  much  influence  upon  the 
founders  and  defenders  of  the  American  Constitution.  On  the  whole, 
Guizot's  criticism  of  the  'Federalist'  is  the  most  judicious.  It  is  an 
invaluable  work  on  the  apjolication  of  the  elementary  principles  of  gov- 
ernment to  practical  administration.  Nothing  can  be  more  sagacious 
than  its  anticipation  of  the  way  in  which  the  new  institutions  would 
actually  work,  or  more  conclusive  than  its  exposure  of  the  fallacies 
which  underlay  the  popular  objections  to  some  of  them. 

"It is  not  to  be  supposed  that  Hamilton,  Jay,  and  Madison  were  care- 
less of  historical  experience.  They  had  made  a  careful  study  of  many 
forms  of  government,  ancient  and  modern.  Their  observations  on  the 
ancient  Republics,  which  were  shortly  afterwards  to  prove  so  terrible  a 
snare  to  French  political  theorists,  are  extremely  just.  The  cluster  of 
commonwealths  woven  together  in  the  '  United  Netherlands '  is  fully 
examined,  and  the  weaknesses  of  this  anomalous  confederacy  are 
shrewdly  noted.  The  remarkable  structure  of  the  Romano-German 
Empire  is  depicted,  and  there  is  reason  to  suspect  that  these  institu- 
tions, now  almost  forgotten,  influenced  the  framers  of  the  American 
Constitution,  both  by  attraction  and  by  repulsion.  But  far  the  most 
important  experience  to  which  they  appealed  was  that  of  their  own 
country,  at  a  very  recent  date.  The  earliest  link  had  been  stipplied  to 
the  revolted  colonies  by  the  first  or  American  'Continental'  Congress, 
which  issued  the  Declaration  of  Independence.  There  had  subsequently 
been  the  'Articles  of  Confederation,'  ratified  in  1781.  These  earlier 
experiments,  their  demonstrable  miscarriage  in  many  particulars,  and 
the  disappointments  to  which  they  gave  rise,  are  a  storehouse  of  in- 
stances and  a  plentiful  source  of  warning  and  reflection  to  the  writers 
who  have  undertaken  to  show  that  their  vices  are  removed  in  the  Con- 
stitution of  1787-89. 

"Nevertheless,  there  is  one  fund  of  political  experience  upon  which 
the  'Federalist'  seldom  draws,  and  that  is  the  political  experience  of 
Great  Britain.  The  scantiness  of  these  references  is  at  first  sight  inex- 
plicable. The  writers  must  have  understood  Great  Britain  better  than 
any  other  country,  except  their  own.  They  had  been  British  subjects 
during  most  of  their  lives.  They  had  scarcely  yet  ceased  to  breathe 
the  atmosphere  of  the  British  Parliament  and  to  draw  strength  from 

376 


^  CH.  VIII.]         THE   GREAT   NATIONAL  DEBATE.  §  237 

stitutional  questions,  always  with  respect,  although  on  some 
points  it  has  not  agreed  with  the  authors,  notably  in  regard 

its  characteristic  disturbances.  Next  to  their  own  stubborn  valour,  the 
chief  secret  of  the  colonists'  success  was  the  incapacity  of  the  English 
generals,  trained  in  the  stiff  Prussian  system  soon  to  perish  at  Jena,  to 
adapt  themselves  to  new  conditions  of  warfare,  an  incapacity  which 
newer  generals,  full  of  admiration  for  a  newer  German  system,  were 
again  to  manifest  at  Majuba  Hill  against  a  meaner  foe.  But  tlie  colo- 
nists had  also  reaped  signal  advantage  from  the  encouragements  of  the 
Britisli  Parliamentary  Opposition.  If  tiie  King  of  France  gave  'aid,' 
the  English  Opposition  gave  perpetual  'comfort'  to  tlie  enemies  of  the 
King  of  England.  It  was  a  fruit  of  the  English  pai'ty  system  which 
was  to  reappear,  amid  much  greater  public  dangers,  in  the  Peninsular 
War;  and  tlie  revelation  of  domestic  facts,  the  assertion  of  domestic 
weakness,  were  to  assist  the  arms  of  a  military  tyrant,  as  they  had  as- 
sisted the  colonists  fighting  for  independence.  Various  observations  in 
the  'Federalist'  on  the  truculence  of  party  spirit  may  be  suspected  of 
having  been  prompted  by  the  recollection  of  what  an  Opposition  can  do. 
But  there  could  be  no  open  reference  to  this  in  its  pages;  and,  on  the 
whole,  it  cannot  but  be  suspected  that  the  fewness  of  the  appeals  to 
British  historical  examples  had  its  cause  in  their  unpopularity.  The 
object  of  Madison,  Hamilton,  and  Jay  was  to  persuade  their  country- 
men; and  the  appeal  to  British  experience  would  only  have  provoked 
prejudice  and  repulsion.  I  hope,  however,  to  show  that  the  Constitu- 
tion of  the  United  States  is  coloured  throughout  by  political  ideas  of 
British  origin,  and  that  it  is  in  reality  a  version  of  the  British  Consti- 
tution, as  it  must  have  presented  itself  to  an  observer  in  the  second 
half  of  the  last  century."  (Citing especially  Numbers  5, 14,  19,  20, 69 and 
70,  and  referring  to  Bancroft's  History  of  the  Constitution  of  the  Uni- 
ted States,  v(d.  II,  p.  330.)  Popular  Government,  Sir  Henry  Sumner 
Maine,  John  Murray,  London,  1885,  Essay  IV,  pp.  202-207. 

A  FRENCH  VIEW  OF  THE  FEDERALIST. 

In  Hamilton's  edition  of  the  Federalist  the  following  occurs  (page 
Ixxxviii),  after  referring  to  some  of  the  earliest  American  editions:  "  No 
other  edition  was  published  in  the  United  States  until  the  year  1802, 
three  or  more  translations— the  first  in  1792 — having,  in  the  meantime, 
appeared  in  Paris,  during  the  exciting  discussions  which  then  occupied 
the  people  of  France.  Talleyrand  appreciating  it,  said  to  the  Due 
D'Aranda,  envoy  at  the  French  Court  from  Spain— 'Vouz  avez  In  Le 
Fed('raliste?'— 'Non,'  replied  D'Aranda,— '  Lisez  done  lisez,'  was  the 
significant  answer.  Guizot,  another  distinguished  statesman  of  Franco, 
observed,  '  In  the  application  of  elementary  princij)les  of  government  to 
practical  administration,  it  was  the  greatest  work  known  to  him.'  "  See 
also  the  opinions  of  Chancellor  Kent  and  Mr.  Justice  Story  referred  to 
in  Hamilton's  Edition  of  the  Federalist  immediately  following  the  above 
quotation. 

377 


§  239  TREATY-MAKING  POWER  OF  THE  U.  S.     [CH.  VIII. 

to  the  effects  of  treaties  with  foreign  powers,  as  contracts 
and  as  laws.^ 

§  238.  Treaty-niakiug  power  referred  to  in  the  Federalist 
and  in  other  pnblications. — The  treaty-making  power  vested 
by  the  Constitution  in  the  Central  Government  was  equally 
prominent  as  a  factor  in  this  National  discussion  as  it  had  been 
in  the  several  State  conventions  to  which  reference  has  been 
made  in  the  preceding  chapter.  It  would  require  too  much 
space  to  quote  all  that  appears  in  the  Federalist  and  other 
pamphlets,  published  at  that  time,  on  the  subject  of  treaties, 
and  the  treaty -making  power ;  the  few  selections  quoted  in 
the  text  and  the  notes  show  that  the  people  at  large,  as  well 
as  the  delegates  to  the  conventions,  thoroughly  understood 
what  a  far-reaching  power  it  was,  how  exclusively  it  was 
lodged  in  the  Central  Government,  and  how  necessary  this 
was  to  the  future  peace  and  happiness  of  the  Union.  The 
authors  of  the  Federalist  seem  to  have  considered  these  prop- 
ositions elementary  principles  for  the  government  of  confed- 
erated Republics. 

§  239.  The  Federalist,  No.  XXII,  reference  to  treaties. 
— Referring  to  treaties  the  author  of  No.  XXII,'  says: 
"  A  circumstance  which  crowns  the  defects  of  the  Con- 
federation remains  yet  to  be  mentioned, — the  want  of  a 
judiciary  power.  Laws  are  a  dead  letter  without  courts  to 
expound  and  define  their  true  meaning  and  operation.  The 
treaties  of  the  United  States,  to  have  any  force,  at  all,  must 
be  considered  as  part  of  the  law  of  the  land.  Their  true 
import,  as  far  as  respects  individuals,  must,  like  all  other 
laws,  be  ascertained  by  judicial  determinations.  To  produce 
uniformity  in  these  determinations,  they  ought  to  be  sub- 
mitted, in  the  last  resort,  to  one  supreme  tribunal.  And 
this  tribunal  ought  to  be  instituted  under  the  same  authority 
which  forms  the  treaties  themselves.  These  ingredients  are 
both  indispensable.     If  there  is  in  each  State  a  court  of  final 


§237. 

3  See  §  320,  p.  46®,  post.  For 
views  of  Chief  Justice  Marshall 
as  to  the  Federalist  and  Alexander 
Hamilton,  see  Cohens  vs.  Virgivia, 
U.  S.  Sup.  Ct.,  6  Wheaton,  264, 
Marshall,  Ch.  J. 

378 


§  239. 

1  Published  in  the  New  York 
Packet,  Friday,  December  14,  1787; 
credited  by  Lodge  to  Hamilton. 


CH.  VIII.]         THE  GREAT   NATIONAL   DEBATE.  §  240 

jurisdiction,  there  may  be  as  many  different  final  determina- 
tions on  the  same  point  as  there  are  courts.     There  are  end- 
less diversities  in  the  opinions  of  men.     We  often  see  not 
only  different  courts  but  the  judges  of  the  same  court  differ- 
ing from  each  other.     To  avoid  the  confusion  which  would 
unavoidably  result  from  the  contradictory  decisions  of  a  num- 
ber of  independent  judicatories,  all  nations  have  found  it 
necessary  to  establish  one  court  paramount  to  the  rest,  pos- 
sessing a  general  superintendence,  and  authorized  to  settle 
and  declare  in  the  last  resort  a  uniform  rule  of  civil  justice. 
.     .     .     The  treaties  of  the  United  States,  under  the  present 
Constitution,^  are  liable  to  the  infractions  of  thirteen  differ- 
ent legislatures,  and  as  many  different  courts  of  final  juris- 
diction, acting  under  the  authority  of  those   legislatures. 
The  faith,  the  reputation,  the  peace  of  the  w^hole  Union,  are 
thus  continually  at  the  mercy  of  the  prejudices,  the  passions, 
and  the  interests  of  every  member  of  which  it  is  composed. 
Is  it  possible  that  foreign  nations  can  either  respect  or  con- 
fide in  such  a  government?     Is  it  possible  that  the  people 
of  America  will  longer  consent  to  trust  their  honor,  their 
happiness,  their  safety,  on  so  precarious  a  foundation  ? " 
§  240.  The  Federalist,  No.  XXIII,  the  treaty-making 

power  should  have  no  constitutional  shackles The  author 

of  No.  XXIII,!  gives  his  reasons  for  believing  that  the  powders 
entrusted  to  the  federal  government,  in  which  that  of  treaty- 
making  is  included,  "ought  to  exist  without  limitation,  le- 
cause  it  is  impossible  to  foresee  or  define  the  extent  and  variety 
of  national  exigencies,  or  the  corresponde7it  extent  and  variety 
of  the  means  which  may  he  necessary  to  satisfy  them?  The 
circumstances  that  endanger  the  safety  of  nations  are  infi- 
nite, and  for  this  reason  no  constitutional  shackles  can  wnsely 
be  imposed  on  the  power  to  which  the  care  of  it  is  committed. 
This  power  ought  to  be  co-extensive  with  all  the  possible 
combinations  of  such  circumstances  ;  and  ought  to  be  under 
the  direction  of  the  same  councils  which  are  appointed  to  pre- 
side over  the  common  defence." 

'^  Refers  to  Articles  of  Confedera- 
tion. 

§240. 

1  Published  in  the  New  York 
Packet,    Tuesday,    December    18, 


1787;  credited  by  Lodge  to  Hamil- 
ton. 

2  The  italics  are  so  in  Lodge's 
edition. 


379 


§  243  TREATY-MAKING  POWER  OP  THE  U.  S.     [CH.  VIIT. 

§  241.  The  Federalist,  No.  XXXIX;  duality  of  the  Cen- 
tral Goveriimeut. — A  strong  exposition  of  the  duality  of  the 
Federal-Xational  Government  ^Yill  be  found  in  No.  XXXIX/ 
in  wliich  the  author  declares,  in  the  final  sentence,  in  support 
of  his  point  that  the  proposed  Constitution  is  not,  strictly- 
speaking,  either  National  or  Federal,  but  is  a  composition 
of  both,  that :  "  In  its  foundation  it  is  federal,  not  national ; 
in  the  sources  from  which  the  ordinary  powers  of  the  gov- 
ernment are  drawn,  it  is  partly  federal,  and  partly  national ; 
in  the  operation  of  these  powers,  it  is  national,  not  federal; 
in  the  extent  of  them,  again,  it  is  federal,  not  national ;  and, 
finally,  in  the  authoritative  mode  of  introducing  amend- 
ments, it  is  neither  wholly  federal  nor  wholly  national." 

§  242.  The  Federalist,  No.  XLII ;  treaties  with  foreign 
nations. — In  Xo.  XLII^  the  power  to  make  treaties  with 
foreign  nations  is  again  referred  to,  and  the  author  of  that 
number  makes  these  concise  remarks  made  in  regard  thereto : 
"This  class  of  powers  forms  an  obvious  and  essential  branch 
of  the  federal  administration.  If  we  are  to  be  one  nation  in 
any  respect,  it  clearly  ought  to  be  in  respect  to  other  nations. 

"  The  powers  to  make  treaties  and  to  send  and  receive 
ambassadors,  speak  their  own  propriety.  Both  of  them  are 
comprised  in  the  articles  of  Confederation,  with  this  differ- 
erence  only,  that  the  former  is  disembarrassed,  by  the  plan 
of  the  convention,  of  an  exception,  under  which  treaties 
might  be  substantiall}^  frustrated  by  regulations  of  the 
States." 

§  243.  The  Federalist,  No.  XLV ;  enlargement  of  con- 
gressional powers. — In  Xo.  XLV^t  is  stated  that  the  change 
from  the  articles  of  Confederation  to  the  Constitution  con- 
sisted much  less  in  the  addition  of  new^  powers  to  the  Union 
than  invigoration  of  its  original  powers.  Continuing,  the 
Federalist  says:  "The  regulation  of  commerce,  it  is  true,  is 
a  new  power ;  but  that  seems  to  be  an  addition  which  few 


§241. 

1  Published  in  the  Independent 
Journal  (date  ncit  given);  credited 
by  Lodge  to  Madison. 

§  242. 

1  Published    in    the   New    York   by  Lodge  to  Madison, 

380 


Packet,  Tuesday,  January  22,  1788; 
credited  by  Lodge  to  Madison. 

§  243. 

1  Published  in  the  Independent 
Journal  (date  not  given);  credited 


CH.  VIII.]         THE   GREAT    NATIONAL   DEBATE.  §  245 

oppose,  and  from  which  no  apprehensions  are  entertained. 
The  powers  relating  to  war  and  peace,  armies  and  fleets, 
treaties  and  finance,  with  the  other  more  considerable  powers, 
are  all  vested  in  the  existing  Congress  by  the  articles  of  Con- 
federation. The  proposed  change  does  not  enlarge  these 
powers;  it  only  substitutes  a  more  effectual  mode  of  admin- 
istering them." 

§  24i.  The  Federalist,  No.  LXIV ;  importance  of  treaty- 
makiug  power — In  No.  LXIV,^  after  quoting  the  section 
giving  power  to  the  President  to  make  treaties  by  and  with 
the  consent  of  the  Senate,  provided  that  the  requisite  num- 
ber concur,  the  author  says :  "  The  power  of  making  treaties 
is  an  important  one,  especially  as  it  relates  to  war,  peace, 
and  commerce  ;  and  it  should  not  be  delegated  but  in  such  a 
mode,  and  with  such  precautions,  as  will  afford  the  highest 
security  that  it  will  be  exercised  by  men  the  best  qualified 
for  the  purpose,  and  in  the  manner  most  conducive  to  the 
public  good.  The  convention  appears  to  have  been  atten- 
tive to  both  these  points :  they  have  directed  the  President 
to  be  chosen  by  select  bodies  of  electors,  to  be  deputed  by 
the  people  for  that  express  purpose ;  and  they  have  com- 
mitted the  appointment  of  senators  to  the  State  legislatures. 
This  mode  has,  in  such  cases,  vastly  the  advantage  of  elec- 
tions by  the  people  in  their  collective  capacity,  where  the 
activity  of  party  zeal,  taking  advantage  of  the  supineness, 
the  ignorance,  and  the  hopes  and  fears  of  the  unwary  and 
interested,  often  places  men  in  office  by  the  votes  of  a  small 
proportion  of  the  electors." 

§  245.  The  Federalist,  No.  LXIV ;  same  subject  con- 
tinued.— The  author  again  says,  in  the  same  number:  "It 
was  wise,  therefore,  in  the  convention  to  provide,  not  only 
that  the  power  of  making  treaties  should  be  committed  to 
able  and  honest  men,  but  also  that  they  should  continue  in 
place  a  sufficient  time  to  become  perfectly  acquainted  with 
our  national  concerns,  and  to  form  and  introduce  a  system 
for  the  management  of  them."     Continuing,  he  says: 

"It  seldom  ha|)pens  in  the  negotiation  of  treaties,  of  what- 
ever nature,  but  that  perfect  secrecy  and  immediate  despatch 

§244.  j  Packet,    Friday,    March    7,    1788; 

I  Published    in    the    New    York  '  credited  by  Lodge  to  Jay. 

381 


§  245  TREATY-MAKING  POWER  OF  THE  U.  S.    [CH.  VIII. 

are  sometimes  requisite.  There  are  cases  where  the  most 
useful  iutelligence  may  be  obtained,  if  the  persons  possess- 
ing it  can  be  relieved  from  apprehensions  of  discovery. 
Those  apprehensions  will  operate  on  those  persons  whether 
they  are  actuated  by  mercenary  or  friendly  motives ;  and 
there  doubtless  are  many  of  both  descriptions,  who  would 
rely  on  the  secrecy  of  the  President,  but  who  would  not 
confide  in  that  of  the  Senate,  and  still  less  in  that  of  a  large 
popular  Assembly.  The  convention  have  done  well,  there- 
fore, in  so  disposing  of  the  power  of  making  treaties,  that 
although  the  President  must,  in  forming  them,  act  by  the 
advice  and  consent  of  the  Senate,  yet  he  will  be  able  to 
manage  the  business  of  intelligence  in  such  a  manner  as 
prudence  may  suggest." 

After  showing  the  wisdom  of  confiding  the  treaty-making 
power  to  the  Executive,  and  to  the  Senate,  that  being  the 
smaller  body  of  Congress  and  therefore  better  fitted  for  the 
purpose  on  account  of  the  secrecy  and  despatch  requisite  in 
the  negotiation  of  treaties,  the  Federalist  answers  those  who 
had  objected  to  the  provision  making  treaties  the  supreme 
law  of  the  land  by  saying,  in  the  same  number:^ 

"Others,  though  content  that  treaties  should  be  made  in 
the  mode  proposed,  are  averse  to  their  being  the  supreme 
laws  of  the  land.  They  insist,  and  profess  to  believe,  that 
treaties  like  acts  of  assembly,  should  be  repealable  at  pleas- 
ure. This  idea  seems  to  be  new  and  peculiar  to  this  country, 
but  new  errors,  as  well  as  new  truths,  often  appear.  These 
gentlemen  would  do  well  to  reflect  that  a  treaty  is  only  an- 
other name  for  a  bargain,  and  that  it  would  be  impossible 
to  find  a  nation  who  would  make  any  bargain  with  us,  which 
should  be  binding  on  them  absolutely^  but  on  us  only  so  long 
and  so  far  as  we  may  think  proper  to  be  bound  by  it.  They 
who  make  laws  may,  without  doubt,  amend  or  repeal  them ; 
and  it  will  not  be  disputed  that  they  who  make  treaties  may 
alter  or  cancel  them  ;  but  still  let  us  not  forget  that  treaties 
are  made,  not  by  only  one  of  the  contracting  parties,  but  by 
both;  and  consequently,  that  as  the  consent  of  both  was 
essential  to  their  formation  at  first,  so  must  it  ever  after- 

§245. 

iXo.  LXIV. 

382 


CH.  VIII.]         THE   GREAT   NATIONAL  DEBATE.  §  246 

Avards  be  to  alter  or  cancel  them.  The  proposed  Constitu- 
tion, therefore,  has  not  in  the  least  extended  the  obligation 
of  treaties.  They  are  just  as  binding,  and  just  as  far  beyond 
the  lawful  reach  of  legislative  acts  now,  as  they  will  be  at 
any  future  period,  or  under  any  form  of  government."  ^  It 
must  be  noted,  however,  that  the  views  expressed  by  the 
Federalist  in  this  number  have  not  always  been  acquiesced 
in,  or  followed  by,  the  Supreme  Court.  This  will  be  referred 
to  at  length  in  a  subsequent  chapter  on  the  relative  effects 
of  treaty  stipulations  and  United  States  statutes.^ 

§  246.  The  Federalist,  No.  LXIX :  the  treaty-making 
power  of  the  United  States  compared  with  that  of  Great 
Britain. — In  No.  LXIX^  the  treaty-making  power  as  vested 
in  the  President  and  Senate  is  compared  to  the  treaty-making 
power  as  exercised  by  the  king  of  Great  Britain  and  the 
reasons  for  the  vesting  the  treaty-making  power,  in  its 
widest  scope  in  the  Executive,  are  given  as  follows :  "  The 
President  is  to  have  power,  with  the  advice  and  consent 
of  the  Senate,  to  make  treaties,  provided  two  thirds  of  the 
senators  present  concur.  The  king  of  Great  Britain  is 
the  sole  and  absolute  representative  of  the  nation  in  all 
foreign  transactions.  He  can  of  his  own  accord  make  trea- 
ties of  peace,  commerce,  alliance,  and  of  every  other  descrip- 
tion. It  has  been  insinuated,  that  his  authority  in  this  respect 
is  not  conclusive,  and  that  his  conventions  with  foreign 
powers  are  subject  to  the  revision,  and  stand  in  need  of  the 
ratification,  of  Parliament.  But  I  believe  this  doctrine  was 
never  heard  of,  until  it  was  broached  upon  the  present  occa- 
sion. Every  jurist^  of  that  kingdom,  and  every  other  man 
acquainted  with  its  Constitution,  knows,  as  an  established 
fact,  that  the  prerogative  of  making  treaties  exists  in  the 
crown  in  utmost  plenitude ;  and  that  the  compacts  entered 
into  by  the  royal  authority  have  the  most  complete  legal 
validity  and  perfection,  independent  of  any  other  sanction. 


2  For  views  of  John  Jay  on  the 
treaty-making  power  of  the  con- 
federation, see  his  letter  to  Con- 
gress referred  to  at  length  in  note  4 
under  §  157,  p.  268,  et  sec/.,  ante. 

^  See  note  3  under  §  237,  p.  378, 
ante,  and  §  313,  p.  449,  post. 


§  246. 

1  Published  in  the  New  York 
Packet,  Friday,  Maich  14,  1788, 
credited  by  Lodge  to  Hamilton. 

2 The  Federalist  here  cites  Black- 
stone's  Commentaries,  vol.  I,  p.  257. 

383 


§  247  TREATY-MAKING  POWER  OF  THE  U.  S.     [CH.  Vin. 

The  Parliament,  it  is  true,  is  sometimes  seen  employing  itself 
in  altering  the  existing  laws  to  conform  them  to  the  stipu- 
lations in  a  new  treaty ;  and  this  may  have  possibly  given 
birth  to  the  imagination,  that  its  cooperation  was  necessary 
to  the  obligatory  efficacy  of  the  treaty.  But  this  parliamen- 
tary interposition  proceeds  from  a  different  cause :  from  the 
necessity  of  adjusting  a  most  artificial  and  intricate  system 
of  revenue  and  commercial  laws,  to  the  changes  made  in 
them  by  the  operation  of  the  treaty ;  and  of  adapting  new 
provisions  and  precautions  to  the  new  state  of  things,  to  keep 
the  machine  from  running  into  disorder.  In  this  respect, 
therefore,  there  is  no  comparison  between  the  intended 
power  of  the  President  and  the  actual  power  of  the  British 
sovereign.  The  one  can  perform  alone  what  the  other  can 
only  do  with  the  concurrence  of  a  branch  of  the  legislature. 
It  must  be  admitted,  that,  in  this  instance,  the  power  of  the 
federal  Executive  ^vould  exceed  that  of  any  State  Executive. 
But  this  arises  naturally  from  (the  exclusive  possession  by 
the  Union  of  that  part  of)Hhe  sovereign  power  which  relates 
to  treaties.  If  the  Confederacy  were  to  be  dissolved,  it 
would  become  a  question,  whether  the  Executives  of  the 
several  States  were  not  solely  invested  with  that  delicate 
and  important  prerogative." 

§  24:7.  The  Federalist,  No.  LXXV ;  advantages  of  the  Uni- 
ted States  plan  ;  treaties  as  contracts. — In  Number  LXXV  ^ 
the  Federalist  again  reverts  to  the  provision  that  the  President 
"  is  to  have  power,  '  by  and  with  the  advice  and  consent  of 
the  Senate  to  make  treaties,  provided  two  thirds  of  the  Sena- 
tors present  concur.'  "  In  support  of  this  provision  he  says 
that  although  it  has  been  assailed  on  different  grounds  with  no 
small  degree  of  vehemency,  he  does  not  scruple  to  declare  his 
firm  persuasion  that  it  is  one  of  the  best  digested  and  most  un- 
exceptionable parts  of  the  plan.  He  discusses  and  shows  the 
advantages  of  the  system  as  compared  with  the  alternative 
methods  of  placing  the  power  in  the  hands  of  the  President 
alone,  or  of  the  Senate  alone,  or  of  allowing  the  House  of 


3  The  words  in  parenthesis  ap- 
pear in  Da\vson''s  edition  of  the 
Federalist,  but  are  omitted  in 
Lodge's  edition. 

384 


§247. 

1  Published  in  the  Independent 
Journal  (date  not  given);  credited 
by  Lodge  to  Hamilton. 


CH.  Vin.]         THE   GREAT   NATIONAL   DEBATE.  §  248 

Representatives  to  participate  therein.  He  demonstrates 
that  requiring  the  concurrence  of  two  thirds  of  the  whole 
Senate  instead  of  those  present,  would  have  proved  an  em- 
barrassment rather  than  a  benefit. 

In  speaking  of  treaties  in  this  number,  the  Federalist  takes 
the  ground  that  treaty-making  is  not  either  strictly  executive 
or  legislative;  in  this  respect  he  says:  "The  power  of  mak- 
ing treaties  is,  plainly,  neither  the  one  nor  the  other.  It  re- 
lates neither  to  the  execution  of  the  subsisting  laws,  nor  to 
the  enaction  of  new  ones,  and  still  less  to  an  exertion  of  the 
common  strength.  Its  objects  are  contracts  with  foreign 
nations,  which  have  the  force  of  law,  but  derive  it  from  the 
obligations  of  good  faith.  They  are  not  rules  prescribed  by 
the  sovereign  to  the  subject,  but  agreements  between  sov- 
ereign and  sovereign.  The  power  in  question  seems  there- 
fore to  form  a  distinct  department,  and  to  belong,  properly, 
neither  to  the  legislative  nor  to  the  executive." 

As  stated  in  a  previous  section,  we  shall  have  occasion  to 
refer  again  to  these  views  of  the  Federalist  in  a  subsequent 
chapter." 

§  24S.  The  Federalist,  No.  LXXX ;  treaty-making  power 
of  National  Government  necessary  for  peace  of  Union. — 
In  Number  LXXX^  the  necessity  of  submitting  the  matters 
involving  the  peace  of  the  Union  to  the  national  judiciary  is 
stated  as  follows  :  "  The  fourth  point  rests  on  this  plain  prop- 
osition, that  the  peace  of  the  whole  ought  not  to  be  left  at 
the  disposal  of  a  pakt.  The  Union  will  undoubtedly  be  an- 
swerable to  foreign  powers  for  the  conduct  of  its  members. 
And  the  responsibility  for  an  injury  ought  ever  to  be  accom 
panied  with  the  faculty  of  preventing  it.  As  the  denial  or 
perversion  of  justice  by  the  sentences  of  courts,  as  well  as  in 
any  other  manner,  is  with  reason  classed  among  the  just 
causes  of  war,  it  will  follow  that  the  federal  judiciary  ought 
to  have  cognizance  of  all  causes  in  which  the  citizens  of  other 
countries  are  concerned.  This  is  not  less  essential  to  the 
preservation  of  the  public  faith,  than  to  the  security  of  the 

2See  §  245,  p.  381,  ante,  and  §  ;313,  I  as  being  taken  from  McLean's 
p.  449,  post  edition  of    1788    and    credited  to 

§  248.  Hamilton. 

1  In  Lodge's  edition  this  is  stated  I 

25  385 


TREATY-MAKING  POWER  OF  THE  U.  S.    [CH.  VIU. 


public  tranquillity.  A  distinction  may  perhaps  be  imagined 
between  cases  arising  upon  treaties  and  the  laws  of  nations 
and  those  which  may  stand  merely  on  the  footing  of  the 
municipal  law.  The  former  kind  may  be  supposed  proper 
for  the  federal  jurisdiction,  the  latter  for  that  of  the  States. 
But  it  is  at  least  problematical,  whether  an  unjust  sentence 
against  a  foreigner,  where  the  subject  of  controversy  was 
wholly  relative  to  the  lex  loci,  would  not,  if  unredressed,  be 
an  aggression  upon  his  sovereign,  as  well  as  one  which  vio- 
lated the  stipulations  of  a  treaty  or  the  general  law  of  na- 
tions. And  a  still  greater  objection  to  the  distinction  would 
result  from  the  immense  difficulty,  if  not  impossibility,  of  a 
practical  discrimination  between  the  cases  of  one  complexion 
and  those  of  the  other.  So  great  a  proportion  of  the  cases 
in  which  foreigners  are  parties,  involve  national  questions, 
that  it  is  by  far  most  safe  and  most  expedient  to  refer  all  those 
in  which  they  are  concerned  to  the  national  tribunals." 

§  249.  Authorship  of  the  Federalist.— The  author  of  this 
volume  does  not  intend  to  enter  into  any  discussion  as  to  the 
authorship  of  the  various  numbers  of  the  Federalist ;  ^  there 
can  be  no  doubt  that  in  the  various  extracts  given  the  views 
expressed  on  the  treaty -making  power  represented  the  opin- 
ions of  Madison,  Hamilton  and  Jay,  all  of  whom  were  thor- 
oughly conversant  with  the  history  of  confederated  govern- 
ments, and  the  general  rules  of  political  science  connected 
therewith ;  the  most  casual  examination  of  the  records  of  the 
Federal  and  State  Constitutional  Conventions,  and  of  the 
Federalist,  will  show  that  no  men  were  better  qualified  to 


§249. 

iMr.  Lodge  devotes  Part  I  of 
his  Introduction  to  the  authorship 
of  the  "Federalist"  (pp.  xxiii- 
xxxv).  On  page  xxiii  he  says: 
*'  The  discussion  about  the  '  Feder- 
alist' began  nearly  seventy  years 
ago  has  continued  at  intervals 
down  to  the  present  day  (1894),  and 
culminated  some  twenty  years  since 
in  two  most  elaborate  essays,  one 
by  Mr.  Henry  B.  Dawson,  the  other 
by  Mr.  John  C.  Hamilton,  which 
were  prefixed  to  the  editions  of  the 

386 


'Federalist,'  published  by  those 
two  gentlemen  respectively.  It  is 
of  course  idle  to  suppose  that  any 
thing  cannot  be  written  which  will 
convince  or  satisfy  everybody  as 
the  true  answer  to  this  long  mooted 
question."  The  reader  of  this  book 
is  referred  to  the  three  editions  of 
the  "Federalist"  above  referred 
to,  all  of  which  have  tables  in  the 
introductions  giving  the  various 
claims  as  to  the  authorship  of  the 
"  Federalist." 


CH.  Vm.]  THE   GREAT   NATIONAL   DEBATE.  §  251 

express  opinions  upon  the  subjects  than  the  three  authors  of 
the  Federalist.  No.  LXIV  ^  which  was  devoted  entirely  to 
a  discussion  of  treaty-making  power,  was  undoubtedly  the 
work  of  John  Jay,  who  had  been  Secretary  of  Foreign  Rela- 
tions under  the  Confederation,  and  had  represented  the  Uni- 
ted States  in  foreign  countries,  and  who  subsequenth^  per- 
formed the  duties  of  Secretary  of  State  for  a  brief  period 
under  President  Washington,  was  Minister  to  England,  and 
negotiated  the  treaty  with  that  country,  which  has  always 
borne  his  name,  and  who  was  also  the  first  Chief  Justice  of 
the  United  States.  Surely  no  one  could  be  better  qualified 
to  speak  upon  the  subject  of  treaty-making  than  that  emi- 
nent jurist  who  had  devoted  so  much  of  his  life  thereto  and 
whose  utterances  in  that  regard  have  always  been  rightly 
considered  as  entitled  to  the  greatest  weight  and  respect.^ 

§  250.  Other  imblications  prior  to  ratification. — Even  at 
the  risk  of  devoting  too  much  space  to  this  class  of  litera- 
ture, a  few  other  extracts  from  pamphlets  published  during 
the  ratification  contest  will  be  given,  and  in  order  to  show 
that  it  was  by  no  means  a  one-sided  affaii'  some  will  be  se- 
lected from  pamphlets  published  with  the  hope,  and  for  the 
pui'pose — fortunately  unsuccessful — of  defeating  the  ratifica- 
tion of  the  Constitution.^ 

§251.  Richard  Henry  Lee's  opposition;  the  "Federal 
Farmer." — Richard  Henry  Lee  of  Virginia,  a  bitter  opponent 


2  See   §§   244-5,   pp.   381,  et   ^eq,, 
ante. 

3  See  note  4,  §  156,  pp.  268,  et  seq., 
ante. 

§250. 

1  A  number  of  letters  which  will 


both  so  peculiarly  needed,  and  so 
especially  advantageous  to  the 
State  of  Massachusetts,  tliat  its 
adoption  was  only  endangered  by 
certain  questions  of  local  i)olitics, 
which    could   not   even  enter  into 


be  found  in  Ford's  Essays  and  |  the  discussion.  They  were  no- 
Pamphlets  were  written  in  op-  ticed.or  replied  to,  inthe  Massachu- 
posiLion   to   the    adoption    of    tlie  '  setts  Gazette,  December  21,  1787, 


Constitution  in  Massachusetts;  of 
these,  Mr.  Fiu'd  states  ( p.  51,  Essays ) 
that    the    letters    of     "Agrippa'^ 


by  "Charles  James  Fox;"  De- 
cember 27,  1787,  and  January  4, 
1788,  by    "Kempis   O'FIannigan," 


were  the  ablest  anti-federal   pub-    January  22  and  January  25,  1788, 


lications  printed  in  Massachusetts, 
and  showed  especial  ability  in  ar- 
guing the  dangers  and  defects  of  a 
plan    of    government    which    was 


by  "Junius,"  and  in  the  letters  of 
"Cassius,"  printed  in  the  same 
volume. 

387 


§  251  treaty-]\lve:ing  power  of  the  u.  s.   [ch.  vm. 

of  the  Constitution,  expressed  his  views  under  the  title  of 
"  The  Federal  Farmer "  in  regard  to  treaties  as  follows : 
"•ith.  There  are  certain  rights  which  we  have  always  held 
sacred  in  the  United  States,  and  recognized  in  all  our  con- 
stitutions, and  which,  by  the  adoption  of  the  new  constitu- 
tion in  its  present  form,  will  be  left  unsecured.  By  article  6, 
the  proposed  constitution,  and  the  laws  of  the  United  States, 
which  shall  be  made  in  pursuance  thereof ;  and  all  treaties 
made,  or  which  shall  be  made  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land ;  and 
the  judges  in  every  state  shall  be  bound  thereby ;  anything 
in  the  constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding. 

"  It  is  to  be  observed  that  when  the  people  shall  adopt  the 
proposed  constitution  it  will  be  their  last  and  supreme  act ; 
it  will  be  adopted  not  by  the  people  of  New  Hampshire, 
Massachusetts,  etc.,  but  by  the  people  of  the  United  States; 
and  wherever  this  constitution,  or  any  part  of  it,  shall  be 
incompatible  with  the  ancient  customs,  rights,  the  laws  or  the 
constitutions  heretofore  established  in  the  United  States,  it 
will  entirely  abolish  them  and  do  them  away  :  And  not  only 
this,  but  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  of  the  federal  constitution  will  be  also  supreme 
laws,  and  wherever  the}' shall  be  incompatible  with  those  cus- 
toms, rights,  laws  or  constitutions  heretofore  established, 
they  will  also  entirely  abolish  them  and  do  them  away. 

"  By  the  article  befoi-e  recited,  treaties  also  made  under 
the  authority  of  the  United  States,  shall  be  the  supreme 
law :  It  is  not  said  that  these  treaties  shall  be  made  in  pur- 
suance of  the  constitution — nor  are  there  any  constitutional 
bounds  set  to  those  who  shall  make  them :  The  president 
and  two  thirds  of  the  senate  will  be  empowered  to  make 
treaties  indefinitely,  and  when  these  treaties  shall  be  made, 
they  will  also  abolish  all  laws  and  state  constitutions  incom- 
patible with  them.  This  power  in  the  president  and  senate 
is  absolute,  and  the  judges  will  be  bound  to  allow  full  force 
to  whatever  rule,  article  or  thing  the  president  and  senate 
shall  establish  by  treat}'',  whether  it  is  practicable  to  set 
any  bounds  to  those  who  make  treaties,  I  am  not  able  to 
388 


CH.  VIII.]  THE  GREAT  NATIONAL  DEBATE.  §  253 

say ;  if  not,  it  proves  that  this  power  ought  to  be  more 
safely  lodged."^ 

§  252.  George  Mason's  protest. — George  Mason,  who 
was  also  a  bitter  opponent  of  the  Constitution  published  a 
violent  pamphlet  attacking  it  in  many  respects;  he  con- 
sidered that  by  declaring  all  treaties  supreme  laws  of  the 
land  the  Executive  and  the  Senate  had  in  many  instances 
an  exclusive  power  of  legislation  which  might  have  been 
avoided  by  proper  distinction  with  respect  to  treaties,  by 
requiring  the  assent  of  the  House  of  Representatives.^ 

§  253.  Judge  Iredell's  answer;  " Marcus. "^Judge  Ire- 
dell of  North  Carolina  to  whose  able  work  in  the  convention 
of  that  State  we  have  already  alluded  ^  and  to  whom  we  shall 
allude  in  a  later  chapter,  in  regard  to  his  opinion  in  the  great 
case  of  Ware  vs.  Jli/lton  in  which  the  treaty-making  power 
under  the  Constitution  was  discussed  and  construed,^  answered 
Colonel  Mason  under  the  name  of  "  Marcus,"  in  one  of  the 
best  pamphlets  published  during  the  period.  In  regard  to 
the  treaty-making  power  Judge  Iredell  argued  that  it  was 
already  the  law  of  the  land  and  had  been  so  determined  by 
Congress  in  unanimously  resolving  to  adopt  the  very  sensible 
letter  of  Mr.  Jay's^  to  the  effect  "that  a  treaty  when  once 
made  pursuant  to  the  sovereign  authority,  ex  vi  teinnini 
became  immediately  the  law  of  the  land."  Continuing, 
Judge  Iredell  said  :  "  It  seems  to  result  unavoidably  from 
the  nature  of  the  thing,  that  when  the  constitutional  right 
to  make  treaties  is  exercised,  the  treaty  so  made  should  be 
binding  upon  those  who  delegated  authority  for  that  purpose. 
If  it  was  not,  what  foreign  power  would  trust  us?  And 
if  this  right  was  restricted  by  any  such  fine  checks  as  Mr. 
Mason  has  in  his  imagination,  but  has  not  thought  proper  to 
disclose,  a  critical  occasion  might  arise,  when  for  want  of  a  lit- 
tle rational  confidence  in  our  own  government,  we  might  be 
obliged  to  submit  to  a  master  in  an  enemy.    Mr.  Mason  wishes 


§251. 

1  Ford's  Pamphlets  on  the  Con- 
stitution, p.  311.  The  punctuation 
is  so  in  the  oi'iginal. 

§252. 

1  Ford's  Pamphlets  on  the  Con- 
stitution, pp.  327,  et  seq.,  sec  p.  331. 


§253. 

1  See  §  227,  p.  360,  ante. 

2  See  §  328,  Vol.  II,  p.  9. 

3  For  an  extended  reference  to 
Jay's  report,  or  letter,  see  note  un- 
der §  156,  pp.  268,  et  seq.,  ante. 

389 


§  254  TREATY-MAKING  POWER  OF  THE  U.  S.    [CH.  VIII. 

the  House  of  Representatives  to  have  some  share  in  this  busi- 
ness, but  he  is  immediately  sensible  of  the  impropriety  of  it, 
and  adds  '  where  it  can  be  done  witli  safety.'  And  how  is  it  to 
be  known  whether  it  can  be  done  with  safety  or  not,  but  dur- 
ing the  pendency  of  a  negotiation  ?  Must  not  the  President 
and  Senate  judge  whether  it  can  be  done  with  safety  or  not? 
If  they  are  of  opinion  it  is  unsafe,  and  the  House  of  Repre- 
sentatives of  course  not  consulted,  what  becomes  of  this 
boasted  check,  since,  if  it  amounts  to  no  more  than  the  Pres- 
ident and  Senate  may  consult  the  House  of  Representatives 
if  they  please,  they  may  do  this  as  well  without  such  a  pro- 
vision as  with  it.  i^othing  would  be  more  easy  than  to  as- 
sign plausible  reasons,  after  the  negotiation  was  over,  to  show 
that  a  communication  was  unsafe,  and  tlierefore  surely  a  pre- 
caution that  could  be  so  easily  eluded,  if  it  was  not  impolitic 
to  the  greatest  degree,  must  be  thouo-ht  trifling  indeed.  It 
is  also  to  be  observed,  that  this  authority,  so  obnoxious  in 
the  new  Constitution  (which  is  unfortunate  in  having  little 
power  to  please  some  persons,  either  as  containing  new 
things  or  old),  is  vested  indetinitel}^  and  without  restriction 
in  our  present  Congress,  who  are  a  body  constituted  in  the 
same  manner  as  the  Senate  is  to  be,  but  there  is  this  mate- 
rial difference  in  the  two  cases,  that  we  shall  have  an  addi- 
tional check,  under  the  new  system  of  a  President  of  high 
personal  character  chosen  by  the  immediate  body  of  the 
people."  4 

§  254.  David  Ramsay's  letters ;  "  Civis."— David  Ram- 
say of  South  Carolina,  who  had  also  been  a  delegate  to  his 
own  State  convention,  issued  an  address  to  his  friends, 
countrymen,  and  fellow  citizens  under  the  title  of  "  Civis  "  in 
which  he  disposed  of  the  objections  as  to  the  treaty-making 
power  as  follows:  "It  has  been  objected,  that  the  president, 
and  two-thirds  of  the  senate,  though  not  of  your  election,  may 
make  treaties  binding  on  the  state.  Ask  these  objectors — do 
you  wish  to  have  any  treaties  ?  They  will  say  yes.  Ask  then 
who  can  be  more  properly  trusted  with  the  power  of  making 
them,  than  they  to  whom  the  convention  have  referred  it  ? 
Can  the  state  legislatures !     They  would  consult  their  local 

*  Ford's  Pamphlets  on  tlie  Constitution,  pp.  333,  et  seq.,  see  p.  355. 

390 


CH.  VIII.]         THE   GREAT   NATIONAL   DEBATE.  §  255 

interests. — Can  the  Continental  House  of  Representatives  ? 
When  sixty-five  men  can  keep  a  secret,  they  may. — Observe 
the  cautious  guards  which  are  placed  round  your  interests. 
Neither  the  senate  nor  president  can  make  treaties  by 
their  separate  authority. — They  must  both  concur. — This  is 
more  in  your  favour  than  the  footing  on  which  you  now  stand. 
The  delegates  in  Congress  of  nine  states,  without  your  con- 
sent, can  now  bind  you;  by  the  new  constitution  there 
must  be  two-thirds  of  the  members  present,  and  also  the 
president,  in  whose  election  you  have  a  vote.  Two-thirds 
are  to  the  whole,  nearly  as  nine  to  thirteen.  If  you  are  not 
wanting  to  yourselves  by  neglecting  to  keep  up  the  state's 
compliment  of  senators,  your  situation  with  regard  to  pre- 
venting the  controul  of  your  local  interests  by  the  Northern 
States,  will  be  better  under  the  proposed  constitution  than  it 
is  now  under  the  existing  confederation."  i 

§  255.  Public  knowledge  as  to  the  treaty-making  power 
and  its  effects. — Any  one,  therefore,  who  examines  the 
records  of  the  great  contests  over  the  adoption  of  the  Con- 
stitution in  the  State  conventions,  and  in  the  country  at  large, 
must  inevitably  reach  the  conclusion,  that  Article  VI,  making 
treaties  the  supreme  law  of  the  land  and  paramount  to  all 
State  legislation,  was  based  upon  the  acknowledged  weakness 
of  the  Confederation,  not  only  as  to  the  making  of  treaties, 
but  also  as  to  enforcement  and  fulfilment  of  treaty  obligations. 
It  is  also  apparent  that  a  majority  of  the  people,  includ- 
ing many  who  were  opposed  to  the  Constitution  on  other 
grounds,  considered  that  in  our  relations  with  foreign  powers, 
whether  the  subject-matter  related  to  national  affairs,  or  those 
within  the  control  of  the  States,  or  even  of  individuals,  the 
Central  Government  must  be  clothed  with  the  absolute  and 
exclusive  power  to  negotiate  and  conclude  treaties  of  every 
class ;  that  it  had  been  effectually  demonstrated  that  the  pol- 
icy adopted  by  the  Confederation,  in  regard  to  the  treaty  of 
peace  with  Great  Britain,  of  urging  legislation  upon  the  va- 
rious States  to  carry  treaty  stipulations  into  effect  was  an  im- 
practicable and  unsatisfactory  method  of  dealing  with  foreign 
powers ;  that  the  unwillingness  or  failure  of  many  of  the  States 

§254. 

I  Fords'  Pamphlets  on  the  Constitution,  p.  376. 

391 


§  256  TREATY-MAKING  POWER  OF  THE  U.  S.     [cH.  VIII. 

to  act  in  accordance  with  the  suggestions  of  Congress,  or 
their  subsequent  unwillingness  or  inability  to  conform  to  the 
conditions  of  the  treaty,  bad  placed  us  in  an  unenviable  posi- 
tion with  all  the  foreign  powers,  many  of  whom  had  lost 
confidence  in  us,  and  to  whom  the  United  States  were '  fast 
becoming  objects  of  ridicule,  rather  than  of  the  great  respect 
to  which,  as  a  nation,  they  were  entitled  ;  that  under  the  new 
Constitution,  and  in  a  large  measure  owing  to  the  additional 
powers  with  which  Article  VI  clothed  the  Central  Govern- 
ment, this  confidence  and  respect  were  immediately  regained, 
and  have  ever  since  been  retained,  as  they  undoubtedly  always 
will  be  if  we  continue  to  recognize  that  those  powers  right- 
fully exist  and  that  the}^  should  be  exercised  on  every  proper 
occasion.  Xor  can  the  position  ever  be  taken  that  the  various 
clauses  in  regard  to  treaties  and  the  treaty-making  power 
in  the  Constitution  were  not  appreciated,  or  were  in  any  way 
disregarded,  by  the  people  in  the  discussions  upon  the  ratifi- 
cation of  that  instrument ;  the  reverse  of  this  proposition  was 
indeed  the  fact. 

§  256.  Importance  of  treaty-making  power  appreciated 
by  the  people,  and  by  the  delegates  to  State  conventions. 
— The  records  of  the  State  conventions  show  that  the  dele- 
gates were  fully  alive  to  the  importance,  and  the  far-reaching 
extent,  of  the  power ;  and  that  the  possibility  of  its  being 
used  to  the  detriment  of  the  States  formed  an  important 
factor  in  the  discussions  in  the  conventions;  the  extracts 
quoted  from  the  pamphlets  of  the  day  show  that  it  was  not 
only  discussed  in  the  State  conventions,  but  that  it  was  also 
discussed  and  considered  by  the  people  themselves. 

In  the  next  chapter  we  will  refer  to  the  opinions  expressed 
by  some  writers  since  the  Constitution  became  the  supreme 
law  of  the  land,  and  which  will  show  what  they  thought 
in  regard  to  the  extent  of,  and  limitations  upon,  the  treaty- 
making  power  of  the  United  States. 


§  255. 

1  The  use  of  were  instead  of  was 
in  this  instance  is  intentional  as 
under  the  Confederation,  after  the 
close  of  the  war,  the  States  were 
driftinff   so   far    from   union    that 

392 


they  were  regarded  as  separate  en- 
tities by  foreign  powers  rather  than 
as  the  component  parts  of  a  single 
entity,  as  they  sliould  liave  been, 
and  have  been  since  the  adoption 
of  the  Constitution. 


CHAPTER  IX. 


OPINIONS  OF  PUBLICISTS,  HISTORIANS  AND  EXPOUNDERS  OF  THE 
CONSTITUTION  IN  REGARD  TO  THE  EXTENT  AND  SCOPE  OF  THE 
TREATY-MAKING  POWER  OF  THE  UNITED  STATES. 


Section 

257 — Pre-ratificatioa  literature 
necessarily  academic. 

258 — Different  status  of  post-rati- 
fication literature. 

259 — Treaty-making  power  fur- 
nishes many  questions  for 
discussion. 

260 — Opinions  of  publicists — not 
judicial  decisions — dis- 
cussed in  this  chapter. 

261 — Views  of  William  Rawle; 
1825. 

262 — Mr.  Eawle's  acquaintance 
with  members  of  Constitu- 
tional Convention. 

263 — Views  of  William  A.  Duer; 
1833. 

264 — George  Ticknor  Curtis'  Con- 
stitutional History  of  the 
United  States. 

265 — Joseph  Story,  the  commen- 
tator of  the  Constitution. 

266— Story's  views  on  Article  VI 
of  the  Constitution. 

267 — Judge  Cooley's  "Constitu- 
tional Limitations;"  1873. 

268 — Professor  Pomeroy's  views. 


Section 

269— Professor  Pomeroy's  broad 
views  in  regard  to  the  Ex- 
ecutive and  foreign  rela- 
tions. 

270 — Professor  Pomeroy  on  State 
statutes  and  treaty  stipu- 
lations. 

271— Views  of  Story,  Iredell  and 
Pomeroy  identical  as  to 
State  statutes  and  treaty 
stipulations. 

272 — Chancellor  Kent's  opinion, 

273 — Numerous  other  opinions  in 
support  of  broadest  pow- 
ers. 

274 — Narrower  views  of  some 
authorities  on  the  Consti- 
tution. 

275 — John  Randolph  Tucker's 
views. 

276 — John  C.  Calhoun's  views. 

277 — Improper  use  of  treaty  stip- 
ulations as  to  urging  State 
legislation. 

278 — This  chapter  confined  to  ex- 
tent of  treaty-making 
power. 


§  257.  Pre-ratification  literature  necessarily  academic. 

— The  extracts  in  the  preceding  chapter  are  all  taken  from 
pamphlets  published  for  or  against  the  Constitution  before 
it  was  ratified,  and  when  the  effect  and  extent  of  its  pro- 
visions could  only  be  treated  in  a  prophetic  manner  and  from 
an  academic  standpoint. 

Written  in  the  abstract,  and  based  upon  hypothetical  con- 
ditions, they  were,  therefore,  necessarily  largely  theoretical 

393 


5^  259  TKKATV-MAKIN(i  POWER  OF  THE  U.  S.         [CH.  IX. 

and  did  not  relate  to  the  application  of  the  provisions  of  the 
Constitution  to  any  concrete  conditions;  with  the  exception 
of  the  Federalist,  few  of  them,  if  any,  have  ever  been  regarded 
by  the  courts  as  affording  an}^  basis  for  the  construction  of 
any  of  the  clauses  of  the  Constitution  ;  in  this  volume  they 
have  been  referred  to,  as  evidence  of  the  fact  that  the  treaty- 
making  power  was  thoroughly  understood  by  the  people  be- 
fore the  constitution  was  adopted,  rather  than  as  legal  au- 
thority for  the  extent  of  the  power.^ 

§  258.  Different  status  of  post-ratiflcatiou  literature. — 
The  moment,  however,  that  the  Constitution  became  the 
fundamental  basis  of  the  Government  of  the  United  States, 
practical  questions,  as  to  the  interpretation  and  application 
of  its  provisions,  arose,  and  from  that  time  the  literature  re- 
garding the  Constitution  can  be  divided  into  two  classes: 
First,  views  of  expounders  who  have  discussed  it  in  com- 
mentaries and  text-books  from  legal  and  political  stand- 
points in  connection  with  the  adjudicated  law  of  this  and 
other  countries ;  second,  decisions  of  the  courts  upon  con- 
stitutional points  which  have  arisen  in  actions  at  law  and 
required  the  judicial  construction  and  interpretation  of  the 
instrument  itself,  and  in  which  the  judges,  delivering  their 
opinions  in  regard  thereto,  have  expressed  their  views  as  to 
the  nature,  scope  and  extent  of  the  provisions  of  the  Con- 
stitution involved  in  the  actions,  as  well  as  to  the  general 
nature  and  powers  of  the  Government  of  the  United  States. 

§  259.  Treaty-making  power  furnishes  many  questions 
for  discussion. — It  will  readily  be  seen  that  the  nature  and 
extent  of  the  treaty-making  power  vested  in  the  General 
Government  by  the  Constitution,  and  of  the  effects  of  treaties 
upon  the  laws  of  the  United  States,  and  of  the  various  States, 
have  continuously  afforded  opportunities,  both  for  the  ex- 
pounders of  the  Constitution  in  treatises,  and  for  the  judges 
in  decisions,  to  express  their  views  on  constitutional  ques- 
tions ;  in  fact,  as  will  be  seen  in  the  next  chapter,  one  of  the 
first  great  constitutional  controversies  in  which  the  power  of 
the  Union  was  asserted,  and  was  upheld  by  the  Supreme 
Court  as  superior  to  the  law  of  any  of  the  States,  related  to 


iSee  §  255,  p.  391,  ante. 

394 


CH.  IX.] 


OPINIONS    OF    PUBLICISTS. 


§261 


the  treaty-making  power.  In  the  case  of  Ware  vs.  Ilylton'^ 
this  question  was  discussed  in  an  action  submitted  to,  and 
decided  by,  the  Supreme  Court,  and  the  provisions  of  the 
Constitution  in  regard  to  treaties  were  judicially  construed 
and  determined. 

§  260.  Opinions  of  publicists— not  judicial  decisions — 
discussed  in  tliis  cliapter. — The  judicial  decisions  will  be 
reserved  for  subsequent  chapters,^  and  the  balance  of  this 
chapter  will  be  devoted  to  referring  briefly  to  the  opinions 
of  some  of  the  ablest  writers  upon  the  Constitution,  and 
giving  a  summary  of  their  views  in  regard  to  the  nature 
and  extent  of  the  treaty-making  power  as  it  is  vested  in  the 
Central  Government  of  the  United  States.  It  will  only  be 
possible  to  give  extracts  from  a  few  of  the  many  eminent 
writers  upon  constitutional  law  and  treaties.^ 

§261.  Views  of   William   Rawle;    1825 One  of  the 

earliest  expounders  of  the  Constitution  was  William  Rawle, 
whose  book,  published  in  1825,  was  immediately  recognized, 
and  has  ever  since  retained  its  position,  as  an  able  exposition 
of  the  subject,  notwithstanding  some  of  the  extreme  views 
of  the  autlior.^ 

Mr.  Rawle  was  an  ardent  exponent  of  the  States'  rights 
school :  in  fact,  he  believed  in  the  right  of  secession ;  he 
gave,  however,  the  widest  possible  scope  to  the  treaty-making 
power.  The  following  extract  shows  that  he  realized  how 
fully  the  framers  and  ratifiers  of  the  Constitution  appreciated 
the  nature  and  extent  of  this  power  when  they  vested  it  in 
the  Central  Government  of  the  United  States. 

''  The  nature  and  extent  of  this  constitutional  power  under- 
went full  examination,  in  the  state  conventions.  The  most 
general  terms  are  used  in  the  Constitution.     The  powers  of 


§259. 

iSee  §324,  Vol.  II,  pp.  6  at  seq. 
§260. 

1  Chaps.  XI-XIV,  pofit. 

2  The  student  who  desires  to  fur- 
ther investigate  this  subject  will 
find  two  very  complete  bibliogra- 
phies of  the  subject.  One,  as  the 
Appendix  to  the  second  volume  of 
Curtis'  Constitutional    History   of 


the  United  States,  and  the  other 
in  Paul  Leicester  Ford's  collections 
of  Pami)hlets  on  the  Constitution. 
See  also  list  of  authorities  referred 
to,  at  connnencanient  of  this  volume. 

§261. 

^  A  view  of  the  Constitution  of  the 
United  States  by  William  Rawle, 
1st  edition,  Philadelphia,  1825, 
2d  edition,  1829. 

395 


§  261  TREATY->L\KING  POAVER  OF  THE  U.  S.        [CH.  IX. 

congress  in  respect  to  making  laws  we  shall  iind  are  laid 
under  several  restrictions.  There  are  none  in  respect  to 
treaties.  Although  the  acts  of  public  ministers,  less  im- 
mediately delegated  by  the  people  than  the  house  of  rep- 
resentatives ;  the  president  constitutionally  and  the  senate, 
both  constitutionally  and  practically,  two  removes  from  the 
people,  are  by  the  treaty  making  power,  invested  with  the 
high  and  sole  control  over  all  those  subjects  which  properly 
arise  from  intercourse  with  foreign  nations,  and  may  event- 
ually effect  important  interests  at  home.  To  define  them 
in  the  Constitution  would  have  been  impossible,  and  there- 
fore a  general  term  could  alone  be  made  use  of,  which  is, 
however,  to  be  scrupulously  confined  to  its  legitimate  inter- 
pretation. Whatever  is  wanting  in  an  authority  expressed, 
must  be  sought  for  in  principle,  and  to  ascertain  whether 
the  execution  of  the  treaty  making  power  can  be  supported, 
we  must  carefully  apply  to  it  the  principles  of  the  Constitu- 
tion from  which  alone  the  power  proceeds. 

"  In  its  general  sense,  we  can  be  at  no  loss  to  understand 
the  meaning  of  the  word  treaty.  It  is  a  compact  entered 
into  with  a  foreign  power,  and  it  extends  to  all  those  mat- 
ters which  are  generall}^  the  subjects  of  compact  between 
independent  nations.  Such  subjects  are  peace,  alliance,  com- 
merce, neutrality,  and  others  of  a  similar  nature.  To  make 
treaties  is  an  essential  attribute  of  a  nation.  One  which  dis- 
abled itself  from  the  power  of  making,  and  the  capacity  of 
observing  and  enforcing  them  when  made,  would  exclude  it- 
self from  the  international  equality  which  its  own  interests 
require  it  to  preserve,  and  thus  in  many  respects  commit  an 
injury  on  itself.  In  modern  times  and  among  civilized  na- 
tions, we  have  no  instances  of  such  absurdity.  The  power 
must  then  reside  somewhere.  Under  the  articles  of  confed- 
eration it  was  given  with  some  restrictions,  proceeding  from 
the  nature  of  that  imperfect  compact,  to  congress,  which  then 
nominally  exercised  both  the  legislative  and  executive  powers 
of  general  government.  In  our  present  Constitution  no  limi- 
tations v/ere  held  necessary.  ,  The  only  question  was  where 
to  deposit  it.  Now  this  must  be  either  in  congress  generally, 
in  the  two  houses  exclusive  of  the  president,  in  the  president 
396 


CH.  IX.]  OPINIONS   OF   PUBLICISTS.  §  262 

conjunctly  with  them  or  one  of  them,  or  in  the  president 
alone.     .     .     . 

"  There  is  a  variance  in  the  words  descriptive  of  laws  and 
those  of  treaties — in  the  former  it  is  said  those  which  shall 
be  made  in  pursuance  of  the  Constitution,  but  treaties  are 
described  as  having  been  made,  or  which  shall  be  made  un- 
der  the  authority  of  the  United  States. 

"The  explanation  is,  that  at  the  time  of  adopting  the  Con- 
stitution, certain  treaties  existed,  which  had  been  made  by 
congress  under  the  confederation,  the  continuing  obligations 
of  which  it  was  proper  to  declare.  The  words  '  under  the 
authority  of  the  United  States,'  were  considered  as  extending 
equally  to  those  previously  made,  and  to  those  which  should 
subsequently  be  effected.  But  although  the  former  could 
not  be  considered  as  made  pursuant  to  a  Constitution  which 
was  not  then  in  existence,  the  latter  would  not  be  unless  they 
are  conformable  to  its  Constitution.     .     .     . 

"  Having  felt  the  necessity  of  the  treaty-making  power, 
and  having  fixed  on  the  department  in  which  it  shall  be 
vested,  the  people  of  course  excluded  from  all  interference 
with  it,  those  parts  of  the  government  which  are  not  de- 
scribed as  partaking  of  it.  The  representation  held  out  by 
our  Constitution  to  foreign  powers,  was,  that  the  president 
with  the  advice  and  consent  of  the  senate,  could  bind  the 
nation  in  all  legitimate  compacts :  but  if  pre-existent  acts, 
contrary  to  the  treaty,  could  only  be  removed  by  Congress, 
this  representation  would  be  fallacious ;  it  would  be  a  just 
subject  of  reproach,  and  would  destroy  all  future  confidence 
in  our  public  stipulations.  The  immediate  operation  of  the 
treaty  must  therefore  be  to  overrule  all  existing  legislative 
acts  inconsistent  with  its  provisions."  ^ 

§  262.  Mr.  Rawle's  acquaintance  with  members  of  Con- 
stitutional Convention. — Mr.  Rawle  had  the  advantage  of 
personal  acquaintance  with  members  of  the  Constitutional 
Convention,  and  with  the  Judges  of  the  Supreme  Court  who 
had  been  called  upon  to  construe  it,  and  he  was  well  able  to 
write  upon  the  subject,  having  full  knowledge  of  the  circum- 
stances under  which  the  instrument  itself  was  framed  and 
ratified.     In  another  part  of  his  work,  in  which  he  discussed 

^Idem,  p.  67-61,  1st  edition;  pp.  64-67,  2d  edition. 

397 


§  263  TREATY-MAKING  POAYER  OF  THE  U.  S.         [CH.  IX. 

the  effect  of  Article  VI  upon  the  State  constitutions  and 
legislation,  he  recognized  the  necessity  of  central  action 
"without  any  reference  whatever  to  the  States ;  in  this  re- 
spect he  says :  "  The  effect  of  a  treaty  on  state  constitutions 
and  state  laws  cannot  be  questioned.  Without  considering 
whether  it  operates  directly  as  a  repeal  of  them,  we  are 
warranted  in  saying  that  an  act  done  under  a  state  law,  in 
opposition  to  a  treat}",  cannot  be  set  up  as  a  legal  bar  to  a 
proceeding  founded  on  a  treaty. 

"  The  inability  of  the  Confederation  to  enforce  the  treaties 
made  by  them  was  severely  felt.  Many  state  laws  which 
had  been  passed,  during,  or  shortly  after  the  war  of  the  revolu- 
tion, were  inconsistent  with  some  of  the  articles  of  the  treaty 
of  peace  with  Great  Britain,  and  that  power,  complaining 
of  injuries  sustained  in  consequence  thereof,  postponed  the 
fulfillment  of  the  treaty  in  some  points  on  their  part.  The 
inadequacy  of  the  powers  of  congress  to  enforce  it  were 
then  sensibly  felt,  and  a  serious  declaration  that  a  treaty,  in 
virtue  of  the  confederation,  was  part  of  the  law  of  the  land 
and  obligatory  on  the  several  legislatures,  was  transmitted 
to  all  the  states,  with  an  urgent  recommendation  that  the 
states  themselves  would  repeal  all  those  acts  and  parts  of 
acts  that  were  repugnant  to  the  treaty.  In  this  respect  the 
want  of  a  judicial  power  was  strongly  perceived. 

"  After  the  adoption  of  the  Constitution,  its  retrospective 
effect  upon  the  opposing  laws  of  a  state,  passed  even  before 
the  treaty,  was  speedil}"  and  fully  established  by  the  Supreme 
Court  of  the  United  States."  ^ 

§  263.  Views  of  William  A.  Diier ;  1833.— Another  of  the 
early  commentators  of  the  Constitution  was  William  A.  Duer 
who  as  early  as  1833,  published  his  first  text  book  on  the 
Constitution,^  which  was  afterwards  followed  by  his  Consti- 
tutional Jurisprudence^  in  which  he  declared  that  "  thejpowers 


§262. 

1  A  view  of  the  Constitution  of  the 
United  States,  by  William  Rawle, 
Philadephia,  1825  and  1829,  1st  edi- 
tion p.  68;  2d  edition,  p.  74. 

§263. 

1  Outlines  of  the  Constitutional 
Jurisprudence  of  the  United  States, 

398 


by  William  Alexander  Duer,  LL.  D, 
New  York,  1833. 

2  A  course  of  Lectures  on  the 
Constitutional  Jurisprudence  of 
the  United  States  by  William 
Alexander  Duer,  2d  edition,  Bos- 
ton, 1856. 


CH.  IX.] 


OPINIONS   OF   PUBLICISTS. 


§  263 


to  maJce  treaties^  and  to  send  and  receive  amhassadors  and 
other  piibliG  ininlsters  and  consuls,  are  essential  attributes 
of  national  sovereignty,  and  of  that  international  equality 
which  the  interests  of  every  sovereignty  require  it  to  pre- 
serve." ^ 

The  opening  pages  of  his  seventh  Lecture,  which  are  quoted 
at  length  in  the  notes  show  how  thoroughly  he  had  examined 
this  point  and  how  consistent  it  is  with  the  nationality  and 
sovereignty  of  the  United  States.^ 


3  Idem,  p.  227. 

*  Lecture  VIII,  p.  227,  idem,  con- 
tinues : 

"The  powers  vested  in  the  Gen- 
eral Government  for  regulating 
foreign  intercourse,  consist, 

"First.  Of  tlie  povs^ers  to  make 
treaties,  and  to  send  and  receive 
Ambassadors,  and  other  public 
Ministers,  and  Consuls. 

"  Secondly.  Of  the  power  to  de- 
fine and  punish  piracies  and  felo- 
nies committed  on  the  high  seas, 
and  other  offences  against  the  law 
of  nations;  and, 

"  Thirdly,  Of  the  power  of  regu- 
lating foreign  commerce;  includ- 
ing a  power  to  prohibit,  after  a 
certain  period,  now  elapsed,  the 
importation  of  slaves. 

"This  class  of  powers  forms  an 
obvious  and  essential  branch  of 
Federal  administration;  for  if  the 
United  States  are  one  nation  in 
any  respect,  they  are  most  clearly 
so  in  respect  to  other  nations. 

"1.  The  powers  to  make  treaties, 
and  to  send  and  receive  Ambassa- 
dors and  other  public  Ministers,  and 
Consuls,  are  essential  attributes  of 
national  sovereignty,  and  of  that 
international  equality  which  the 
interests  of  every  sovereignty  re- 
quire it  to  preserve.  Both  powers 
were  possessed  by  Congress  under 
the  Confederation,  but  not  to  the 
extent  to  which  they  are  now  en- 


joyed; for  then  the  former  power 
was  embarrassed  by  an  exception, 
under  wliich  ti-eaties  might  be  sub- 
stantially frustrated  by  regulations 
of  the  States,  and  the  latter  did 
not  comprehend  '  other  public 
ministers  and  consuls.' 

"As  treaties  with  France  and 
Holland,  and  especially  the  treaty 
of  peace  with  Great  Britain,  ex- 
isted when  the  Constitution  was 
adopted,  it  became  necessary  to 
vary  its  terms  in  regard  to  treaties, 
from  those  relative  to  the  laws  of 
the  United  States;  the  declaration 
it  contains  in  respect  to  the  suprem- 
acy of  the  latter  operating  only 
in  future,  while  in  reference  to  tlie 
former  the  terms  are,  '  All  treaties 
made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the 
land.'  These  terms  were  intended 
to  apply  equally  to  previously  ex- 
isting treaties,  as  well  as  to  those 
made  subsequently  to  the  Constitu- 
tion; and  it  has,  accordingly,  been 
adjudged,  by  the  Supreme  Court, 
that  they  effectually  repeal  so 
much  of  the  State  laws  and  Con- 
stitutions as  are  repugnant  to 
them. 

"  More  general  and  extensive 
terms,  also,  are  used  in  vesting  the 
power  with  respect  to  treaties, 
than  in  conferring  that  relative  to 
laws;  and,  while  the  latter  is  laid 

399 


§  264  TREATY-JLA.KING  POWER  OF  THE  U.  S.        [CH.  IX. 

§  2(54.  George  Tickiior  Curtis'  Constitutional  History  of 
the  United  States. — The  Constitutional  History  of  the  Uni- 


under  several  restrictions,  there 
are  noue  imposed  on  the  exercise 
of  the  former,  notwithstanding 
it  is  committed  to  the  President 
and  Senate,  in  exclusion  of  the 
House  of  Representatives,  and  is 
executed  through  the  instrumen- 
tality of  agents  delegated  for  the 
purpose.  And  although  the  Presi- 
dent and  Senate  are  thus  invested 
VFith  this  high  and  exclusive  con- 
trol over  all  those  subjects  of  nego- 
tiation with  foreign  powers,  which, 
in  their  consequences,  may  affect 
important  domestic  interests,  yet 
it  would  have  been  impossible  to 
have  defined  a  power  of  this  nature, 
and,  therefore,  general  terms  only 
were  used.  These  general  expres- 
sions, however,  ought  strictly  to  be 
confined  to  their  legitimate  signifi- 
cation; and  in  order  to  ascertain 
whether  the  execution  of  the  treaty- 
making  power  can  be  supported  in 
any  given  case,  those  principles  of 
the  Constitution,  from  which  the 
power  proceeds,  should  carefully 
be  applied  to  it.  The  power  must, 
indeed,  be  construed  in  subordina- 
tion to  the  Constitution;  and  how- 
ever, in  its  operation,  it  may 
qualify,  it  cannot  supersede  or  in- 
terfere with,  any  other  of  its  funda-, 
mental  provisions,  nor  can  it  ever 
be  so  interpreted  as  to  destroy 
other  powers  granted  by  that 
in.strument.  A  treaty  to  change 
the  organization  of  the  Govern- 
ment, or  annihilate  its  sovereignty, 
or  overturn  its  Republican  form, 
or  to  deprive  it  of  any  of  its  con- 
stitutional powers,  would  be  void; 
because  it  would  defeat  the  will  of 
the  people,  which  it  was  designed 
to  fulfill. 

*'  A  treaty,  in  its  general  sense, 

400 


is  a  compact  entered  into  with  a 
foreign  power,  and  extends  to  all 
matters  which  are  usually  the  sub- 
ject of  compact  between  independ- 
ent nations.  It  is,  in  its  nature,  a 
contract,  and  not  a  Legislative  act; 
and  does  not,  according  to  general 
usage,  effect  of  itself  the  objects 
intended  to  be  accomplished  by  it, 
but  requires  to  be  carried  into  exe- 
cution by  some  subsequent  act  of 
sovereign  power  by  the  contracting 
parties,  especially  in  cases  where  it 
is  meant  to  operate  within  the  ter- 
ritories of  either  of  them.  With 
us,  however,  a  different  principle  is 
established,  in  certain  cases.  It 
has  been  settled  by  the  Supreme 
Court,  that,  inasmuch  as  the  Con- 
stitution declares  a  treaty  to  be  the 
law  of  the  land,  it  is  to  be  regarded 
in  Courts  of  Justice  as  equivalent 
to  an  act  of  Legislature,  whenever 
it  operates  of  itself  without  requir- 
ing the  aid  of  any  legislative  pro- 
vision. But  when  the  terms  of  any 
treaty  stipulation  import  an  execu- 
tory contract,  it  addresses  itself  to 
the  political,  and  not  to  the  Judicial 
department  for  execution,  and  Con- 
gress must  pass  a  law  in  execution 
of  the  compact,  before  it  becomes 
a  rule  for  the  Courts.  The  Consti- 
tution does  not  expresslj'  declare 
whether  treaties  are  to  be  held  su- 
perior to  the  Acts  of  Congress,  or 
whether  the  laws  are  to  be  deemed 
coequal  with,  or  superior  to  trea- 
ties ;  but  the  representation  it  holds 
forth  to  foreign  powers,  is  that  the 
President,  by  and  with  the  advice 
and  consent  of  the  Senate,  may 
bind  the  nation  in  all  legitimate 
contracts;  and  if  pre-existing  laws, 
contrary  to  a  treaty,  could  only  be 
abrogated  by  Congress,  this  repre- 


CH.  IX.] 


OPINIONS   OF   PUBLICISTS. 


§264 


ted  States  by  George  Ticknor  Curtis  will  perpetuate  the  name 
of  that  author  as  long  as  the  Constitution  shall  remain  the 


sentation  would  be  fallacious.  It 
would  subject  the  public  faith  to 
just  imputation  and  reproach,  and 
destroy  all  confidence  in  the  na- 
tional engagements.  The  immedi- 
ate operation  of  a  treaty  must, 
therefore,  be  to  overrule  all  exist- 
ing laws  incompatible  with  its 
stipulations. 

"Nor  is   this   inconsistent  witli 
the  power  of  Congress  to  pass  sub- 
sequent laws,  qualifying,   altering 
or  wholly  annulling,  a  treaty;  for 
such  an  authority,  in  certain  cases, 
is  supported  on  grounds  wholly  in- 
dependent  of    the    treaty-making 
power.     For,  as  Congress  possesses 
the  sole  right  of  declaring  war,  and 
as  the  alteration  or  abrogation  of 
a  treaty  tends   to   produce  it,  the 
power  in  question  may  be  regarded 
as  an  incident  to  that  of  declaring 
war.     The  exercise  of  such  a  right 
may  be  rendered  necessary  to  the 
public  welfare  and  safety,  by  meas- 
ures of  the  party  with  whom  the 
treaty   was  made,  contrary  to  its 
spirit,  or  in  open  violation  of  its 
letter;  and  on  such  grounds  alone 
can  this  right  be  reconciled  either 
with  the  provisions  of  the  Consti- 
tution, or  the  principles  of  public 
law.     A    memorable   instance  has 
occurred   in  our  history  of  the  an- 
nulment of  a  treaty  by  the  act  of 
the   injured    party.     In    the   year 
1798,  Congress   declared   that  the 
treaties  with  France  were  no  longer 
obligatory  on  the  United  States,  as 
they  had  been  repeatedly  violated 
by  the  French  Government,  and  our 
just  claims    for   reparation   disre- 
garded.    Nevertheless,  all  treaties, 
as  soon  ns  ratified  by  competent  au- 
thority, become  of  absolute  efficacy, 
and,  as  long  as  they  continue   in 

26 


force,  are  binding  upon  the  whole 
nation.     If  a  treaty  require  the  pay- 
ment of  money  to  carry  it   into  ef- 
fect, and  the   money   can  only   be 
raised   or  appropriated  by  an  Act 
of  the  Legislature,  it  is  morally  ob- 
ligatory upon  the  legislative  power 
to  pass  the  requisite  law;  and  its 
refusal  to  do  so  would  amount  to  a 
breach  of  the  public  faith,  and  af- 
ford just  cause  of  war.     That  de- 
partment of  the  Government  which 
is  intrusted  with  the  power  of  mak- 
ing treaties  may  bind  the  national 
faith  at  its  discretion;  for  the  trea- 
ty-making power  must  be  coexten- 
sive witli  the  national  exigencies, 
and  necessarily  involves  in  it  every 
branch  of  the  national  sovereignty, 
of   which   the    operation    may   be 
necessary  to  give  effect  to  negotia- 
tions and   compacts  with  foreign 
nations.     If    a    nation    have   con- 
ferred on  its  Executive  department, 
without  reserve  the  right  of  treat- 
ing   and    contracting    with  other 
sovereignties,   it  is   considered  as 
having    invested    it  with    all    the 
power  necessary  to  make  a  valid 
contract,  because  that  department 
is  the  organ  of  the  Government  for 
the  purpose,  and  its  contracts  are 
made  by  the  deputed  will  of  the 
nation.     The  fundamental  laws  of 
the  State  may  withhold  from  it  the 
power  of  alienating  the  public  do- 
main, or  other  property  belonging 
to  it;  but  if  there  be  no  express 
provision  of  thatkind,  the  inference 
is  that  it  has  confided  to  the  depart- 
ment, charged  with  the  duty  and 
the  power   of   making   treaties,   a 
discretion  commensurate  with  all 
the  great  interests  of  the  nation. 
(Citing  Vattel's  Law  of  Nations, 
b.   1,   ch.  21,   sec.  2;  3  Dall.  199; 
401 


§  264  TKEATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IX. 


foundation  of  our  Government,    lie  states  the  reason  for  the 
adoption  of  Article  VI,  in  clear  and  concise  terms  as  follows : 


Grotius'  Law  of  War  and  Peace, 
b.  3,  ch.  20,  sec.  7;  ibid.  b.  4,  ch.  2, 
sees.  11,  12;  1  Cranch,  103.) 

"  The  concurrence  of  each  branch 
of  the  Legislative  power,  we  have 
seen,  is  necessary  to  a  declaration 
of  war,  while  the  President  with 
the  advice  and  consent  of  the  Sen- 
ate alone,  may  conclude  a  treaty  of 
peace.  Xow  a  power  to  make 
treaties  necessarily  implies  a  power 
to  settle  the  terms  on  which  they 
shall  be  concluded;  and  foreign 
States  could  not  deal  safely  with 
the  Government  on  any  other  pre- 
sumption. That  branch  of  the 
Government  which  is  intrusted 
thus  largely  and  generally  with 
authority  to  make  valid  treaties  of 
peace,  can,  of  course,  bind  the  na- 
tion by  the  alienatien  of  part  of 
its  territory;  and  tliis,  acoordin"' 
to  an  approved  writer  on  the  law 
of  nations,  (Grotius,  b.  4,  ch.  2,  sees. 
11,  12)  is  equally  the  case,  whether 
that  territory  be  already  in  the 
occupation  of  the  enemy,  or  re- 
main in  possession  of  the  nation, 
or  whether  the  property  be  public 
or  private.  In  a  case  decided  in 
the  Supreme  Court  of  the  United 
States,  it  was  admitted  that  indi- 
vidual rights  acquired  by  war,  and 
vested  rights  of  the  citizen,  might 
be  sacrificed  by  treaty  for  national 
purpo.ses.     (1  Cranch,  103.) 

"And  in  another  case,  it  was 
held  to  be  a  clear  principle  of  na- 
tional law,  that  private  rights 
might  be  surrendered  by  treaty  to 
secure  the  public  safety,  but  the 
Government  would  be  bound  to 
make  compensation  and  indemnity 
to  the  individual  whose  rights  had 
thus  been  sacrificed. 

"The  conclusion  of  a  treaty  of 
402 


commerce  and  navigation  with 
Great  Britain,  in  1704,  gave  rise 
to  much  public  discussion  as  to 
the  nature  and  extent  of  the  treaty- 
making  power.  A  resolution  was 
passed  by  the  House  of  Represen- 
tatives, requiring  the  President  to 
lay  before  them  a  copy  of  his  in- 
structions to  the  Minister  who  con- 
ducted the  negotiation,  with  the 
correspondence  and  other  docu- 
ments, relative  to  the  treaty, 
excepting  such  papers  as  any  ex- 
isting negotiations  might  render  it 
improper  to  disclose." 

Mr.  Duer  then  quotes  largely 
from  the  reply  of  President  Wash- 
ington to  this  resolution  which  is 
quoted  in  full  as  a  note  to  §  292 
post  of  this  volume,  and  in  Avhich 
he  refused  to  comply  with  the  re- 
quest. 

"  The  principles  thus  laid  down 
by  General  Washington,  were  so 
far  acquiesced  in  by  the  House, 
that  they  passed  a  resolution,  dis- 
claiming the  power  to  interfere  in 
making  treaties;  but  asserting  the 
right  of  the  House  of  Representa- 
tives, whenever  stipulations  are 
made  on  subjects  committed  by 
the  Constitution  to  Congress,  to 
deliberate  on  the  expediency  of 
carrying  them  into  effect;  and  sub- 
sequently it  was  declared,  by  a 
small  majority,  to  be  expedient  to 
pass  the  laws  necessary  for  carry- 
ing the  treaty  into  effect.  From 
that  time  the  question  remained 
undisturbed  until  the  conclusion 
of  a  convention  with  Great  Britain, 
in  1S15,  when  the  House  of  Repre- 
sentatives, after  much  debate, 
passed  a  bill  specifically  enacting, 
on  a  particular  subject,  the  same 
provisions   which  were  contained 


CH.  IX.] 


OPINIONS   OF  PUBLICISTS. 


§264 


"  The  articles  specially  designed  to  assert  and  carry  out 
the  supremacy  of  the  JSTational  Government,  as  they  came 
from  the  Committee,  embodied  the  resolutions  on  the  same 
subject  which  had  passed  the  Convention.  The  only  mate- 
rial addition  consisted  in  the  qualification  that  the  legislative 
acts  of  the  United  States,  which  were  to  be  the  supreme  law, 
were  such  as  should  be  made  in  pursuance  of  the  Constitu- 
tion. Subsequently  the  article  was  so  amended  as  to  make 
the  Constitution,  the  laws  passed  in  pursuance  of  it,  and  the 
treaties  of  the  United  States  the  supreme  law  of  the  land, 
binding  upon  all  judicial  officers. 

"  It  is  a  remarkable  circumstance  that  this  provision  was 
originally  proposed  by  a  very  earnest  advocate  of  the  rights 
of  the  States— Luther  Martin.  His  design,  however,  w^as  to 
supply  a  substitute  for  a  power  over  State  legislation,  which 
had  been  embraced  in  the  Virginia  plan,  and  which  was  to 
be  exercised  through  a  negative  by  the  national  legislature 
upon  all  laws  of  the  States  contravening,  in  their  opinion, 
the  Articles  of  Union  or  the  treaties  subsisting  under  the 
authority  of  the  Union.  The  purpose  of  the  substitute  was 
to  change  a  legislative  into  a  judicial  power,  by  transferring 
from  the  national  legislature  to  the  judiciary  the  right  of 
determining  whether  a  state  law  supposed  to  be  in  conflict 
with  the  Constitution,  laws,  or  treaties  of  the  Union  should 
be  inoperativ^e  or  valid.  By  extending  the  obligation  to  re- 
gard the  requirements  of  the  national  Constitution  and  laws 
to  the  judges  of  the  state  tribunals,  their  supremacy  in  all 
the  judicatures  of  the  country  was  secured.     This  obligation 


as  stipulations  in  the  treaty.  This 
dangerous  innovation  on  the  treaty- 
making  power  was  warmly  opposed 
by  a  minority  in  the  House,  and 
disagreed  to  by  the  Senate;  but, 
after  several  conferences  between 
them,  the  affair  terminated  in  a 
compromise  which  it  is  difficult 
to  reconcile  with  a  sound  construc- 
tion of  the  Constitution.  The  law 
passed  on  the  occasion  brietly  de- 
clares that  so  much  of  any  Act  as 
imposes  a  duty  on  tonnage,  con- 
trary to  the  provisions  of  the  con- 


vention with  Great  Britain,  should, 
from  the  date  of  that  instrument, 
and  during  its  continuance,  be  of 
no  force  or  effect;  thus  setting  a 
precedent  which  may  produce  fu- 
ture difficulty  in  our  national  legis- 
lation, though  tlie  Judicial  tribu- 
nals would  probiibly  regard  such  a 
law  as  a  work  of  supererogaticm, 
or  a  mere  nullity,  and,  from  its 
retroactive  operation,  at  variance 
with  the  spirit  of  the  Constitu- 
tion." (For  citation  see  head  of 
this  note.) 

403 


§265 


TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IX. 


Avas  enforced  by  the  oath  or  aiiirination  to  support  the  Con- 
stitution of  the  United  States  ;  and,  as  we  shall  see  hereafter, 
lest  this  security  should  fail,  the  final  determination  of  ques- 
tions of  this  kind  was  drawn  to  the  national  judiciary,  even 
when  they  might  have  originated  in  a  state  tribunal."' 

§  205.  Joseph  Story*  the  coiumeutator  of  the  Coustitu- 
tioii. — Joseph  Story  was  but  nine  years  of  age  when  the 
Constitution  was  finally  ratified,  but  he  ha^  the  double  ad- 
vantage of  acquaintance  with  many  of  those  who  had  par- 
ticipated in  framing  it,  and  of  being  called  upon  to  construe 
it  as  one  of  the  Justices  of  the  Supreme  Court  of  the  Uni- 
ted States  at  the  veiy  early  age  of  thirty-two,  being  the 
youngest  man  who  ever  sat  ujwn  that  bench.' 

While  the  palm  for  Constitutional  exposition  must  neces- 
sarily be  given  to  the  great  Chief  Justice,  the  centennial  of 
whose  appointment^  has  this  year  been  celebrated  through- 
out the  United  States  in  a  manner  appropriate  to  the  occa- 
sion, and  to  the  memory  of  one  of  the  greatest  jurists  and 
most  distinguished  statesmen  of  this,  or  any  other  countr}'^,  we 
must  not  overlook  the  debt  of  gratitude  we  owe  to  Joseph 
Story,  for  many  years  Marshall's  associate  upon  the  Supreme 
Court  of  the  United  States,  and  who  not  only  displayed 
great  ability  in  his  opinions,  on  constitutional  and  other  ques- 


§264. 

1  Constitutional  History  of  the 
United  States  from  the  Declara- 
tion of  Independence  to  the  close 
of  the  Civil  War,  by  George  Ticknor 
Curtis,  in  two  volumes,  2d  edition, 
New  York,  1889,  p.  554. 

§  265. 

'Joseph  Story,  born  Sept.  IS, 
1779,  appointed  Associate  Justice 
of  the  Supreme  Court  1811,  by  Pres- 
ident Madison,  died  Sept.  10,  1845. 

His  decisions  extend  through 
thirty-five  volumes  of  the  Reports 
of  the  Supreme  Court;  many  of 
them  relate  to  constitutional  con- 
struction, and  several  of  them  to 
the  question  under  discussion. 

2  John  Marshall  of  Virginia  was 
born  September  24,  1755,  he  was 

404 


appointed  Chief  Justice  of  the 
United  States  by  President  John 
Adams  early  in  1801.  He  assumed 
his  place  as  Chief  Justice  on  Feb- 
ruary 4,  1801,  and  occupied  that  po- 
sition until  his  death,  July  6,  1835. 
On  February  4,  1901,  centennial  an- 
niversary exercises  were  held  under 
the  auspices  of  the  American  Bar 
Association  in  Washington,  D.  C. ; 
the  New  Y'ork  State  and  New  York 
City  Bar  associations  jointly  in 
Albany,  N.  Y.,  and  under  various 
local  associations  in  many  other 
cities  of  the  United  States,  Chief 
Justice  Fuller,  Associate  Justice 
Gray,  John  M.  Dillon,  Wayne  Mc- 
Veagh,  Wra.  Wirt  Howe,  W. 
Bourke  Cochran  and  others  deliv- 
ering addresses  at  various  places. 


CH.  IX.]  OPINIONS   OP   PUBLICISTS.  §  266 

tions  of  law,  but  who,  on  some  occasions,  forced  the  entire 
Court  into  uniting  with  him  in  expounding  the  limitations 
upon,  and  at  the  same  time  expanding  the  powers  of,  the 
Federal  Government, 

§  266.  Story's  views  on  Article  VI  of  the  Constitution. 
— His  "  Commentaries  "  on  the  Constitution  published  in 
1833,  at  once  became,  as  they  have  ever  since  remained,  a 
standard  authority  on  the  construction  of  the  Constitution 
from  legal  and  historical  standpoints.  In  speaking  of  Arti- 
cle VI,  ho  says:  ^  "The  propriety  of  this  clause  Avould  seem 
to  result  from  the  very  nature  of  the  Constitution.  If  it 
was  to  establish  a  national  government  that  government 
ought,  to  the  extent  of  its  powers  and  rights,  to  be  supreme. 
It  would  be  a  perfect  solecism  to  affirm  that  a  national  gov- 
ernment should  exist  with  certain  powers,  and  3^et  that  in  the 
exercise  of  those  powers  it  should  not  be  supreme.  .  .  . 
In  regard  to  treaties,  there  is  equal  reason  why  they  should 
be  held,  when  made,  to  be  the  supreme  law  of  the  land.  It 
is  to  be  considered  that  treaties  constitute  solemn  compacts 
of  binding  obligation  among  nations;  and  unless  they  are 
scrupulously  obeyed  and  enforced,  no  foreign  nation  would 
consent  to  negotiate  with  us ;  or  if  it  did,  any  want  of  strict 
fidelity  on  our  part  in  the  discharge  of  treaty  obligations 
would  be  visited  by  reprisals  or  war.^  It  is,  therefore,  indis- 
pensable that  they  should  have  the  obligation  and  force  of 
a  law,  that  they  may  be  executed  by  the  judicial  power,  and 
be  obeyed  like  other  laws.  This  will  not  prevent  them  from 
being  canceled  or  abrogated  by  the  nation  upon  grave  and 
suitable  occasions;  for  it  will  not  be  disputed  that  they  are 
subject  to  the  legislative  power,  and  may  be  repealed,  like 
other  laws,  at  its  pleasure,  or  they  may  be  varied  by  new 
treaties.^  Still,  while  they  do  subsist  they  ought  to  have  a 
positive  binding  efficacy  as  laws  upon  all  the  States  and  all 


§  266. 

1  Commentaries  on  tlio  Constitu- 
tion of  the  United  States,  with  a 
Preliminary  Review  of  the  Consti- 
tutional History  of  the  Colonies  and 
States  befoi-e  the  adoption  of  the 
Constitution,  by  Joseph  Story, 
LL.    D.,     in     two    volumes,    5th 


edition,  by  Melville  M.  Bigelow, 
Ph.  D.,  Boston,  1891,  vol.  II,  §  1837- 
1840,  pp.  603-607. 

2  Citing  the  Federalist,  No.  64. 
(See  §§  244-245,  pp.  381  et  neq. 
ante.) 

8  See  numerous  cases  cited  in 
notes  on  p.  605,  2  Story's  Com. 

405 


§  266  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH,  IX. 

the  citizens  of  the  States.  The  peace  of  the  nation,  and  its 
good  faith,  and  moral  dignit\^  indispensably  require  that  all 
State  laws  should  be  subjected  to  their  supremacy.  .  .  It 
is  notorious  that  treaty  stipulations  (especially  those  of  the 
treaty  of  peace  of  1783)  were  grossly  disregarded  by  the 
States  under  the  confederation.  They  were  deemed  by  the 
States  not  as  laws,  but  like  requisitions  of  mere  moral  obli- 
gation and  dependent  upon  the  good-will  of  the  States  for 
their  execution.  Congress,  indeed,  remonstrated  upon  this 
construction  as  unfounded  iti  principle  and  justice.  But 
their  voice  was  not  heard. 

"  Power  and  right  were  separated ;  the  argument  was  all 
on  one  side,  but  the  power  was  on  the  other.  It  was  jprohahly 
to  obviate  this  very  difficulty^  that  this  clause  was  inserted  in 
the  Constitution ;  and  it  would  redound  to  the  immortal 
honor  of  its  authors  if  it  had  done  no  more  than  to  bring 
treaties  within  the  sanctuar}^  of  Justice  as  laws  of  supreme 
obligation.  .  .  .  It  is  melancholy  to  reflect  that  conclu- 
sive as  this  view  of  the  subject  is  in  favor  of  the  supremacy 
clause,  it  was  assailed  with  great  vehemence  and  zeal  by  the 
adversaries  of  the  Constitution.  .  .  .  The  very  circum- 
stance that  an  objection  was  made  demonstrated  the  utility, 
nay,  the  necessity  of  the  clause,  since  it  removed  every  pre- 
tence under  which  ingenuit}'  could,  by  its  miserable  subter- 
fuges, escape  from  the  controlling  power  of  the  Constitution. 

"  To  be  fully  sensible  of  the  value  of  the  whole  clause,  we 
need  only  suppose  for  a  moment  that  the  supremacy  of  the 
State  constitutions  had  been  left  complete  by  a  saving  clause 
in  their  favor.  .  .  .  The  new  Congress  would  have  been 
reduced  to  the  same  impotent  condition  with  their  predeces- 
sors. ...  As  the  Constitutions  of  the  States  differ  much 
from  each  other,  it  might  happen  that  a  treaty  or  national 
law,  of  great  and  equal  importance  to  the  States,  would  in- 
terfere with  some  and  not  with  other  constitutions,  and 
would  consequently  be  valid  in  some  of  the  States,  at  the 
same  time  that  it  would  have  no  effect  in  others."  ^ 


*Tlie  italics  are  the  authors. 

6  Justice  Story  follows  this  with 
a  discussion  of  the  question  as  to 
how  far  the  treaty-making  power 

406 


embraces  commercial  regulations; 
this  subject  will  be  referred  to  in 
the  next  chapter. 


CH.  IX.]  OPINIONS    OF   PUBLICISTS.  §  267 

§  267.  Judge  Cooley's  "  Constitutional  Limitations  ; " 

1873. — Forty  years  after  Justice  Story's  Commentaries  had 
appeared,  Mr.  Justice  Cooley  of  Michigan  issued  the  first  edi- 
tion of  his  "  Treatise  on  Constitutional  Limitations,"  which 
has  since  then  run  through  numerous  editions,  and  holds  high 
rank  as  an  authority,  especially  as  to  the  constitutional  limi- 
tations resting  upon  the  legislative  powers  reserved  to  the 
States.  He,  also,  recognized  the  absolute  necessity  of  era- 
powering  the  Central  Government  of  the  United  States  to 
make  treaties  in  such  manner  that  there  could  be  no  collision 
between  State  and  National  authorities,  as  w^ould  certainly 
be  the  result  if  the  adjustment  of  international  matters  were 
regulated  by  legislation  in  over  forty-five  different  States. 
Nothing  more  hopeless  can  be  imagined  than  the  prospect  of 
uniformity  in  such  cases ;  he  gives  to  treaties  the  highest 
authority  allowed  by  almost  any  writer  on  the  subject,  either 
in  text-books,  or  in  decisions,  and  in  the  following  paragraph, 
after  quoting  Article  VI,  at  length,  he  shows  how  essential 
this  power  is  to  the  protection  of  the  National  jurisdiction : 
"  It  is  essential  to  the  protection  of  the  national  jurisdic- 
tion, and  to  prevent  collision  between  State  and  national 
authority,  that  the  final  decision  upon  all  questions  arising 
in  reo^ard  thereto  should  rest  with  the  courts  of  the  Union  ; 
and  as  such  questions  must  frequently  arise  first  in  the  State 
courts,  provision  is  made  by  the  Judiciary  Act  for  removing 
to  the  Supreme  Court  of  the  United  States  the  final  judg- 
ment or  decree  in  any  suit,  rendered  in  the  highest  court  of 
law  or  equity  of  a  State  in  which  a  decision  could  be  had,  in 
which  is  drawn  in  question  the  validity  of  a  treaty,  or  stat- 
ute of,  or  authority  exercised  under  the  United  States,  and 
the  decision  is  against  its  validity ;  or  where  is  drawn  in 
question  the  validity  of  a  statute  of,  or  an  authority  exercised 
under  any  State,  on  the  ground  of  its  being  repugnant  to 
the  Constitution,  treaties,  or  laws  of  the  United  States,  and 
the  decision  is  in  favor  of  its  validity ;  or  where  any  title, 
right,  privilege,  or  immunity  is  claimed  under  the  Constitu- 
tion or  any  treaty  or  statute  of  or  commission  held  or  author- 
ity exercised  under  the  United  States,  and  the  decision  is 
against  the  title,  right,  privilege,  or  immunity  specially  set 

407 


§208  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IX. 

up  or  claimed  by  either  part}'^  under  such  Constitution,  treaty, 
statute,  commission  or  authority."  ^ 

In  his  "  General  Principles  of  Constitutional  Law,"  in 
Avhich  he  also  discusses  the  same  subject,  he  says : 

"A  State  law  must  yield  to  the  supreme  law,  whether  ex- 
pressed in  the  Constitution  of  the  United  States  or  in  any 
of  its  laws  or  treaties,  so  far  as  they  come  in  collision,  and 
whether  it  be  a  law  in  existence  when  the  'supreme  law' 
was  adopted,  or  enacted  afterwards.  The  same  is  true  of 
any  provision  in  the  constitution  of  any  State  which  is 
found  to  be  repugnant  to  the  Constitution  of  the  Union. 
And  not  only  must  the  judges  in  every  State,  be  bound  by 
such  supreme  law,  but  so  must  the  State  itself,  and  every 
official  in  all  its  departments,  and  every  citizen."  ^ 

§  268.  Professor  Pomeroy's  Views.  —  Another  recent 
writer  on  the  Constitution  whose  books  have  great  weight  in 
regard  to  its  construction  is  Professor  John  Norton  Pome- 
roy,  whose  "  Introduction  to  the  Constitutional  Law  of  the 
United  States "  has  already  reached  its  ninth  edition.  He 
has,  perhaps,  more  than  any  other  writer,  examined  the  sub- 
ject of  the  treaty-making  power,  and  his  opinion,  amply  sus- 
tained by  citations  and  extracts  from  other  authorities,  is  un- 
equivocally expressed  as  follows : 

"  Of  the  unlimited  extent  and  transcendent  importance  of 
this  (treat3''-making)  function  thus  confided  to  the  Executive, 
either  alone  or  in  connection  with  the  Senate,  there  can  be 
no  doubt.^  .  .  .  The  Constitution  places  no  express  lim- 
its whatever  upon  the  subjects,  conditions,  or  contents  of 
treaties.  The  President  shall  have  power  to  make  treaties. 
Now,  the  subjects  to  which  these  international  compacts 


§267. 

1 A  Treatise  on  the  Constitutional 
Limitations  which  rest  upon  the 
Legislative  Power  of  the  States  of 
the  American  Union,  by  Thomas 
M.  Cooley,  LL.  D.,  6th  edition,  ed- 
ited by  Alexis  C.  Angell,  Boston, 
1890,  pp.  18-19. 

2  The  General  Principles  of  Con- 
stitutional Law  in  the  United 
States  of  America,  by  Thomas  M. 
Cooley,  LL.D.,  3d  edition,  by  An- 

408 


drew  C.  McLaughlin,  A.M.,  LL.B., 
Boston,  1898,  pp.  32-33.  And  see 
numerous  authorities  cited  in  notes 
thereto. 

§2G8. 

1  An  Introduction  to  the  Consti- 
tutional Law  of  the  L'nited  States, 
by  John  Norton  Pomeroy,  9th  edi- 
tion, revised  and  enlarged  by  Ed- 
mund H.  Bennett,  Boston  and  New 
York,  1886,  §  670,  p.  563. 


CH.  IX.]  OPINIONS   OF   PUBLICISTS.  §  269 

may  legitimately  refer,  are  innumerable;  the  stipulations 
they  may  legitimately  contain,  are  equally  various,  depend- 
ent on  numberless  changes  of  circumstances  and  relations. 
They  may  affect  most  vitally  the  interest  of  the  nation  as  a 
whole,  or  the  private  and  personal  interests  of  individuals. 

.  .  .  The  genus,  treaties,  includes  all  the  usual  kinds 
and  sorts."  ^ 

He  expresses,  however,  an  opinion  that  there  are  some 
implied  limitations,  as  for  instance  the  deprivation  of  Con- 
gress or  the  Judiciary,  or  the  President,  of  any  general  pow- 
ers which  are  granted  by  the  Constitution,  or  any  general 
change  in  the  form  of  government  of  this  country,  but, 
with  this  exception,  he  does  not  consider  that  there  are 
any  limitations,  and  draws  particular  attention  to  the  fact 
that  all  "treaties  made  by  the  authority  of  the  United 
States  are,  equally  with  the  Constitution  and  the  laws  of 
Congress  passed  under  it,  the  supreme  law  of  the  land,  and 
are  binding  upon,  and  superior  to,  state  authority,  whether 
that  be  expressed  in  state  constitutions  or  state  laws."  ^ 

§  269.  Professor  Pomeroy's  broad  views  in  regard  to 
the  Executive  and  foreign  relations. — The  most  pertinent 
part  of  his  conclusions  upon  this  subject  are  found  in  the 
following  remarks,  "  upon  the  scope  and  extent  of  this  exec- 
utive function  of  regulating  foreign  relations,  and  its  influ- 
ence and  effect  upon  the  general  powers  of  the  national 
government."  Continuing  he  says :  "  There  is  here,  as  I  be- 
lieve, a  mine  of  power  which  has  been  almost  unworked,  a 
mine  rich  in  beneficent  and  most  efficacious  results.  The 
President  may,  and  must,  manage  the  foreign  relations ;  he 
may,  in  the  manner  prescribed,  enter  into  treaties.  .  .  . 
Where  the  act  is  legislative  in  its  nature,  the  Congress  may 
legislate  ;  where  the  act  is  executive  in  its  nature,  the  Presi- 
dent may  execute.  .  .  .  But  Congress  may,  in  aid  of 
this  function  of  the  President,  pass  laws  which  are  addressed 
directly  to  the  separate  states,  and  which  control  the  acts  of 
their  governments.  The  states  have  no  international  status ; 
but  they  may,  through  their  governments,  do  such  acts  as 
endanger  the  foreign  relations  of  the  nations ;  for  these  acts 

^Idem,  §  674,  p.  566.  »  Uem,  §  675,  p.  567. 

409 


§  -270  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IX. 

the  Government  is  responsible  to  the  foreign  power,  antl 
cannot  evade  the  responsibihty  by  asserting  its  want  of  con- 
trol over  the  state.  As  the  responsibility  rests  upon  it,  the 
power  must  belong  to  it.  .  .  .  I  am  of  opinion  that 
the  general  government,  under  its  function  of  controlling 
international  relations,  has  the  power  by  proper  legislation, 
to  prevent  a  state  from  repudiating  its  public  debt,  so  far  as 
that  debt  may  be  hold  by  foreign  citizens.  I  repeat,  that  in 
this  Executive  attribute,  and  in  the  capacity  of  Congress  to 
pass  laws  in  aid  thereof,  there  is  a  source  of  power  which 
has,  as  yet,  been  little  resorted  to,  which  has  even  been  little 
thought  of,  but  which  is  fruitful  in  most  important  and  salu- 
tary results. 

"When  we  reflect  upon  the  great  variety  of  treaties 
which  may  be  made,  and  the  compulsive  character  which 
the  Constitution  stamps  upon  them,  the  power  of  the  gen- 
eral government,  through  their  means  to  control  state  legis- 
lation is  even  more  plainly  apparent.'"  * 

§  270.  Professor  Poineroy  on  State  statutes  and  treaty 
stipulations. — Referring  to  the  provisions  in  one  of  the 
treaties  with  France,  in  which  the  United  States  agreed  to 
urge  the  various  States  to  make  laws  permitting  aliens  to 
acquire  real  estate,  which  provisions  he  considers  use- 
less, he  says :  "  If  the  treaty  had  expressly  declared  that 
French  subjects  may  have  full  powers  and  rights  to  acquire 
and  hold  lands  in  any  part  of  the  United  States,  such  com- 
pact would  have  overridden,  in  favor  of  Frenchmen,  any 
state  law  forbidding  aliens  to  acquire  and  hold  real  prop- 
erty. And  such  compact  would  have  executed  itself;  it 
would  have  become  part  of  the  supreme  law  of  the  land ; 
it  would  have  required  no  congressional  sanction  ;  state 
courts  would  have  been  bound  to  give  it  force.  In  fact,  the 
treaty  of  1794,  between  Great  Britain  and  the  United  States, 
contained  a  provision  identical  in  principle  with  the  one  sup- 
posed ;  for  the  citizens  of  each  country  were  allowed  to  hold 
and  inherit  lands  held  by  them  or  their  ancestors  in  the 
other  country  prior  to  the  Revolution.  It  is,  therefore,  pos- 
sible at  the  present  day  for  a  British  subject  to  inherit  lands 

§  269.  I  stitutional  Law,  §§  679,  681,  pp.  569 

1  Pomeroy's  Introduction  to  Con- '  -571. 

410 


CH.  IX.]  OPINIONS   OF  PUBLICISTS.  §  272 

in  the  United  States,  notwithstanding  the  laws  of  the  par- 
ticular state  in  wliich  they  are  situated  may  deny  to  an  alien 
this  capacity.  The  validity  of  the  stipuUition  has  been  re- 
peatedly recognized  and  affirmed  by  the  national  and  state 
courts,  and  many  existing  titles  are  based  upon  it."  ^ 

§  271.  Tiews  of  Story?  Iredell  and  Pomeroy  identical  as 
to  State  statutes  and  treaty  stii)ulations. — Thus  we  have 
the  evidence  of  Story,^  IredelP  and  Pomeroy,  three  eminent 
authorities  on  constitutional  law,  that  the  very  object  of 
Article  VI  was  to  do  away  forever  with  the  policy  of  urg- 
ing legislation  upon  the  States,  which  had  been  adopted  with 
such  mortifying  results  by  the  framers  of  the  Treaty  of  1783, 
and  that  it  was  undoubtedly  the  intention  of  the  framers  of 
the  Constitution  to  obviate  such  difficulties,  and  for  that 
purpose  the  clause  making  treaties  binding  upon  the  States 
and  superior  to  their  laws  and  constitutions  was  incorporated 
in  the  instrument.^ 

§  272.  Chancellor  Kent's  opinion. — To  any  question,  re- 
garding the  fundamental  law  of  this  country  answer  can  al- 
most always,  if  not  always,  be  found  in  the  Commentaries  of 
Chancellor  Kent;  his  views  on  the  treaty-making  power  of 
the  United  States  leave  little  room  for  doubt  either  as  to  the 
existence  of  that  power,  or  as  to  its  extent.  In  Lect.  XIII  he 
says :  "  The  President  has  also  the  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make  treaties,  provided 
two  thirds  of  the  senators  present  concur. 

"Writers  on  government  have  differed  in  opinion  as  to  the 
nature  of  this  power,  and  whether  it  be  properly,  in  the  nat- 
ural distribution  of  power,  of  legislative  or  executive  cog- 
nizance. As  treaties  are  declared  by  the  Constitution  to  be 
a  part  of  the  supreme  law  of  the  land,  and  as  by  means  of 
them  ncAV  relations  are  formed  and  obliirations  contracted, 
it  might  seem  to  be  more  consonant  to  the  principles  of  re- 
publican government  to  consider  the  right  of  concluding 
specific  terms  of  peace  as  of  legislative  jurisdiction.  This 
has  generally  been  the  case  in  free  governments.     The  de- 


§270. 

1  Pomeroy's  Introduction  to 
Constitutional  Law,  §  681,  pp.  571- 
572. 


§271. 

iSee  §266,  p.  405,  cm^e. 

2  See  §  253,  p.  389,  ante. 

3  See  also  §  277,  p.  415,  post. 

411 


§  272  TREATY-IIAKING  POWER  OF  THE  U.  S.        [CH.  IX. 

terminations  respecting  peace,  as  well  as  war,  were  made 
in  the  pnblic  assemblies  of  the  nation  at  Athens  and  Rome, 
and  in  all  the  Gothic  governments  of  Europe,  when  they 
tirst  arose  out  of  the  rude  institutions  of  the  ancient  Ger- 
mans. On  the  other  hand,  the  preliminary  negotiations 
which  may  be  required,  the  secrecy  and  despatch  proper  to 
take  advantage  of  the  sudden  and  favorable  turn  of  public 
affairs,  seem  to  render  it  expedient  to  place  this  power  in 
the  hands  of  the  executive  department.  The  Constitution 
of  the  United  States  has  been  influenced  by  the  latter  more 
than  by  the  former  considerations,  for  it  has  placed  this 
power  with  the  President,  under  the  advice  and  control  of 
the  Senate,  who  are  to  be  considered,  for  this  purpose,  in 
the  light  of  an  executive  council.  The  President  is  the  con- 
stitutional organ  of  communication  with  foreign  powers,  and 
the  efficient  agent  in  the  conclusion  of  treaties ;  but  the  con- 
sent of  two  thirds  of  the  senators  present  is  essential  to  give 
validity  to  his  negotiations.  To  have  required  the  acquies- 
cence of  a  more  numerous  body  would  have  been  productive 
of  delay,  disorder,  imbecility,  and  probably,  in  the  end,  a 
direct  breach  of  the  Constitution.  The  history  of  Holland 
shows  the  danger  and  folly  of  placing  too  much  limitation 
on  the  exercise  of  the  treaty -making  power.  By  the  funda- 
mental charter  of  the  United  Provinces  peace  could  not  be 
made  without  the  unanimous  consent  of  the  provinces ;  and 
yet,  without  multiplying  instances,  it  is  sufficient  to  observe, 
that  the  immensely  important  and  fundamental  treaty  of 
Munster,  in  164:8,  was  made  when  Zealand  was  op]iosed  to 
it:  and  the  peace  of  1661,  when  Utrecht  was  opposed.  So 
feeble  are  mere  limitations  upon  paper, — mere  parchment 
barriers,  when  standing  in  opposition  to  the  strong  force  of 
public  exigency."^ 

In  referring  to  Chancellor  Kent's  views  in  regard  to  the 
extent  of  the  treaty-making  power  of  the  United  States, 
Professor  Woolsey  in  his  "  International  Law  "  says: 

"  An  interesting  inquiry  here  arises,  whether  the  treaty- 


§272. 

1  Commentaries  on  American 
Law,  by  James  Kent,  vol.  I,  12tli 
edition  edited  by  O.  W.  Holmes,  Jr. 
412 


and  14th  edition  edited  by  John  M. 
Gould,  Boston,  1896,  p.  34t)  (*284) 
and  see  also  the  notes  to  that  page. 


CH.  IX.]  OPINIONS   OF  PUBLICISTS.  §  275 

making  power  in  a  federative  union,  like  the  United  States, 
can  alienate  the  domain  of  one  of  the  States  without  its  con- 
sent. Our  government,  when  the  northeastern  boundary- 
was  in  dispute,  declared  that  it  had  no  power  to  dispose  of 
territory  claimed  by  the  State  of  Maine.  'The  better  opin- 
ion would  seem  to  be,'  says  Chancellor  Kent,  '  that  such  a 
power  of  cession  does  reside  exclusively  in  the  treaty-mak- 
ing power  under  the  Constitution  of  the  United  States,  al- 
though a  sound  discretion  would  forbid  the  exercise  of  it 
without  the  consent,  of  the  interested  State."  ^ 

§  273.  Numerous  other  opinions  in  support  of  broadest 
powers. — These  quotations  could  be  multiplied  until  reitera- 
tions of  principle  became  wearisome,  and  extracts  could  be 
added  from  many  other  eminent  writers  who  have  contrib- 
uted the  results  of  their  thought  and  experience  to  constitu- 
tional literature,  including  Mr,  Calhoun,^  who  imposes  more 
Kmitations  on  the  Federal  Government  than  almost  any  other 
writer  on  the  subject,  but  who  acknowledges  the  wide  scope 
of  the  treaty-making  power,  although  he  also  imposes  some 
limitations  upon  it.  It  would,  however,  simply  be  in  the 
nature  of  cumulative  evidence,  to  add  additional  excerpts, 
and  therefore  no  further  quotations  will  be  made ;  but  the 
reader  is  referred  to  the  opinions  of  the  judges  of  our  high- 
est Courts,  both  Federal  and  State,  which  are  collated  in  the 
subsequent  chapters. 

§  274.  NarroAYer  views  of  some  authorities  on  the  Con- 
stitution.— iVU  of  the  expounders  of  the  Constitution,  how- 
ever, do  not  take  such  broad  views  of  the  extent  and  scope 
of  the  treaty-making  power  as  it  has  been  vested  in  the  Cen- 
tral Government  by  the  provisions  of  the  Constitution,  and 
while  the  author  does  not  agree  with  them,  as  must  be  ap- 
parent to  any  reader  of  this  volume,  he  desires  to  present 
the  views  of  both  schools  of  Constitutional  construction. 

§  275.  John  Randolph  Tuclter's  views. — Some  of  them 
contend  that  the  tr-eaty-making  power  is  limited  in  many 
ways  and  probably  John  Randolph  Tucker  is  the  best  repre- 
sentative of  the  school  which  would  enforce  limitations  upon 


^Woolsey's  International  Law, 
§  103,  p.  160,  in  regard  to  this  sub- 
ject; see  also  §  426,  Vol.  II. 


§273. 

1  See  §276,  2'>ost,  and  §§  482,  and 
483,  Vol.  II. 

413 


§  275  TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IX. 

this  power.  His  views  as  expressed  in  his  work  on  the  Con- 
stitution are  very  largely  a  condensation  of  his  views  ex- 
pressed in  a  repoi't  from  the  Coniniittee  of  Judiciary  in  1887 
in  regard  to  tlje  recipi'ocity  treaty  Avith  the  Hawaiian  Islands 
to  which  reference  will  be  made  in  a  subsequent  chapter.^ 

Mr.  Tucker's  views  as  to  limitations,  however,  are  here 
quoted  at  length  in  regard  to  the  effect  of  treaties  upon  the 
essential  liberties  of  the  people.     In  that  respect  he  says : 

"  A  ti'eaty,  therefore,  cannot  take  away  essential  liberties 
secured  by  the  Constitution  to  the  people.  A  treaty  cannot 
bind  the  United  States  to  do  what  their  Constitution  for- 
bids them  to  do.  "VVe  may  suggest  a  further  limitation :  a 
treaty  cannot  compel  any  department  of  the  government 
to  do  what  the  Constitution  submits  to  its  exclusive  and 
absolute  will.  On  these  questions  the  true  canon  of  construc- 
tion, that  the  treatj^-making  power,  in  its  seeming  absolute- 
ness and  unconditional  extent,  is  confronted  with  equally 
absolute  and  unconditional  authority  vested  in  the  judiciary. 
Therefore,  neither  must  be  construed  as  absolute  and  uncon- 
ditioned, but  each  must  be  construed  and  conditioned  upon 
the  equally  clear  power  vested  in  the  others.  For  example. 
Congress  has  power  to  lay  and  collect  duties ;  the  President 
and  Senate  have  power  to  make  and  contract  with  a  foreign 
nation  in  respect  to  such  duties.  Can  any  other  construc- 
tion be  given  to  these  two  apparently  contradictory  powers 
than  that  the  general  power  to  make  treaties  must  yield  to 
the  specific  power  of  Congress  to  lay  and  collect  all  duties; 
and  while  the  treaty  may  propose  a  contract  as  to  duties  on 
articles  coming  from  a  foreign  nation,  such  an  executory 
contract  cannot  be  valid  and  binding  unless  Congress,  Avhich 
has  supreme  authority  to  lay  and  collect  duties,  consents  to 
it.  If  it  is  then  asked,  how  are  you  to  reconcile  these  two 
powers  which  appear  to  be  antagonistic,  the  answer  is  clear. 
Congress  has  no  capacity  to  negotiate  a  treatv  with  a  foreign 
power.  The  extent  of  its  membership  makes  this  impracti- 
cable. The  Constitution,  therefore,  left  the  House  of  Kep- 
resentatives  out  of  all  consideration  in  negotiating  treaties. 
The  executory  contract  between  the  United  States  and  a  for- 

§  275.  I  pressions  of  ISIr.   Tucker's  views, 

1  See  §  307,  post.    For  other  ex- 1  see  §  10,  ante  and  §  480,  Vol.  II. 
414 


CH.  IX.]  OPINIONS   OF   PUBLICISTS.  §  277 

eisfu  nation  is  therefore  confided  to  the  one  man  who  can  con- 
duct  the  negotiations,  and  to  a  select  body  who  can  advise 
and  consent  to  the  treaty  he  has  negotiated.  But  this  execu- 
tory contract  must  depend  for  its  execution  upon  the  supreme 
power  vested  in  Congress  '  to  lay  and  collect  duties.'  It  is 
therefore  a  contract  not  completed,  but  inchoate,  and  can 
only  be  completed  and  binding  when  Congress  shall  by  leg- 
islation consent  thereto,  and  lay  duties  in  accordance  with 
the  executory  contract  or  treaty.  The  same  reasoning  may 
apply  to  all  of  the  great  powers  vested  in  Congress,  such  as 
to  'borrow  money,  regulate  commerce,  coin  money,  raise 
armies  and  provide  a  navy,  make  laws  as  to  naturalization, 
bankruptcies,  and  exercise  exclusive  legislation '  in  the  Dis- 
trict of  Columbia  and  territories  of  the  country.  If  these 
are  sought  by  treaty  to  be  regulated  by  the  President  and 
Senate,  it  can  only  be  done  when  the  Congress  vested  with 
these  great  powers  shall  give  its  unconditional  consent."  ^ 

§  276.  John  C.  Calhoun's  views. — The  views  of  Mr.  Cal- 
houn are  so  fully  stated  in  a  later  section  of  this  book  in 
regard  to  limitations  of  the  treaty-making  power,  that  they 
will  not  be  referred  to  at  length  at  this  point.  In  some 
respects,  however,  he  is  inconsistent  with  his  general  theories 
as  to  lack  of  all  nationality  in  the  Central  Government,  as  he 
admits  the  necessity  of  placing  the  treaty-making  power 
exclusively  in  its  hands.^ 

§  277.  Improper  use  of  treaty  stipulations  as  to  urging 
State  legislation. — In  view  of  the  great  preponderance  of 
the  weight  of  authority  on  the  side  of  the  broad  construc- 
tion of  the  powers  of  the  Central  Government,  it  is  strange, 
that  notwithstanding  the  opinions  of  the  eminent  jurists  and 
commentators  whose  views  have  been  given  above,  Commis- 
sioners who  have  been  intrusted  with  the  high  and  honorable 
duty  of  concluding  treaties  between  the  United  States  and 
foreign  powers,  have,  on  more  than  one  occasion,  reverted  to. 


-  The  Constitution  of  the  United 
States.  A  Critical  Discussion  of  its 
Genesis,  Development  and  Inter- 
pretation by  John  Randolpli  Tuck- 
er; edited    by  Henry   St.    George 


Tucker.  In  two  volumes,  Chicago, 
1899,  vol.  II,  §§  .SSa-SuG.  For  quota- 
tion see  pp.  725-726. 

§276. 

1  See  §§  482-483,  chap.  XV,  Vol.  II. 

415 


§278 


TREATY-MAKING  POWER  OF  THE  U.  S.        [CH.  IX. 


and  used,  the  antiquated  system  of  1TS3,  and  have  agreed  to 
"  urge  legislation  upon  the  various  States,"  ^  to  carry  out 
treaty  stipulations,  instead  of  making  the  stipulations  abso- 
lutely, as  the  United  States  has  the  right  to  do,  as  well  as  to 
enforce  them  when  made,  and  in  regard  to  which  the  States 
have  no  power  or  voice  whatever.  It  remains  to  be  seen 
whether  that  policy  will  be  continued,  or  whether,  resting 
on  its  complete  nationality,  as  well  as  upon  its  delegated 
power  under  the  Constitution,  the  Central  Government  of 
the  United  States  shall  finally  and  forever  relegate  that  pol- 
icy to  the  past,  where  it  belongs,  and  shall  exercise  those 
powers  which  necessarily  and  properly  belong  to  it,  and  which 
cannot  be  called  in  question  by  any  foreign  State  with  which 
it  contracts,  or  be  disputed  by  any  of  the  States  for  whom 
the  Central  Government  is  the  only  medium  of  communica- 
tion with  foreign  powers,  with  full  power  in  this  respect,  to 
bind  them,  jointly  and  separately,  federally  and  nationally. 
§  278.  This  chapter  confined  to  extent  of  treaty-making 
power. — The  opinions  quoted  in  this  chapter  refer  only  to 
the  extent  of  the  treatj'^-making  power,  and  not  in  any  way 
to  the  construction  of  treaties,  the  relative  effect  of  treaties 
and  legislation,  or  the  right  of  the  House  of  Eepresentatives 
to  participate  in  the  treaty-making  power.  Some  opinions 
which  have  been  expressed  in  those  respects  will  be  referred 
to,  and  to  some  extent  quoted  from,  in  subsequent  chapters 
which  will  be  devoted  to  the  consideration  of  those  branches 
of  the  subject-matter. 


§277. 

iSee  Article  XXVII,  Treaty  of 
1871  (Washington)  with  Great  Bri- 
tain, in  which  this  Government 
"engages  to  urge  upon  the  State 
Governments  to  secure  to  the  sub- 
jects of  Her  Britannic  Majesty  tlie 
use  of  the  several  State  canals  con- 
nected with  the  navigation  of  the 
lakes  or  rivers  traversed  by  or  con- 
tiguous to  the  boundary  line  be- 
tween the  possessions  of  the  high 
contracting  parties,  on  terras  of 
equality  with  the  inhabitants  of 
the  United  States."     U.  S.  Treaties, 

416 


edition,  1889,  p.  489;  Compilation 
of  Treaties  in  Force,  edition,  1899, 
p.  253.  "Urging"  compliance 
upon  the  States  apparently  con- 
sisted of  the  Secretary  of  State 
writing  to  the  respective  Governors 
of  New  York,  Indiana,  Illinois, 
Michigan,  Ohio,  Pennsylvania  and 
Wisconsin  an  identic  letter  advising 
them  of  the  treaty,  inclosing  a  copy, 
with  special  reference  to  Arti- 
cle XXVII,  and  requesting  compli- 
ance therewith.  See  Foreign  Rela- 
tions of  U.  S.  for  1871,  p.  531. 


CHAPTER  X. 

THE  TREATY-MAKING  POWER  AND  THE  RELATIONS  OF  BOTH  HOUSES 
OF  CONGRESS  THERETO,  AS  THE  SAME  HAS  BEEN  THE  SUBJECT 
OF  CONGRESSIONAL  DEBATE  AND    ACTION. 


Section 

279. — First  Congress  under  Con- 
stitutiou  meets;  earliest 
tariff  statutes. 

280 — Power  of  United  States  to 
protect  manufactures  dis- 
cussed. 

281 — Department  of  Foreign  Af- 
fairs established;  State  de- 
partment. 

282 — No  treaties  negotiated  until 
1794. 

283 — Jay's  treaty;  excitement  and 
opposition. 

284 — Strained  relations  between 
United  States  and  Great 
Britain ;  Washington's  mes- 
sage. 

285 — Rights  of  the  people,  neces- 
sity of  legislation  to  en- 
force the  treaty. 

286 — General  discussion  of  these 
questions. 

287 — John  Jay's  mission  to  Eng- 
land; negotiation  of  treaty. 

288 — Ratification  of  treaty  with 
amendment. 

289 — Popular  excitement;  French 
and  English  parties. 

290 — Meeting  of  Congress;  Mes- 
sage of  the  President. 

291 — Request  of  House  of  Repre- 
sentatives for  papers  relat- 
ing to  treaty. 

292 — President  Washington's  re- 
ply to  the  House. 

293— Effect  of  Washington's  re- 
ply; action  by  the  House. 

2T 


Section 

294 — Other  treaties  ratified  by 
the  Senate  and  before  the 
House. 

295 — Fisher  Ames's  address  and 
argument;  treaty  legisla- 
tion enacted. 

296 — Position  of  House  of  Repre- 
sentatives in  treaty  mat- 
ters defined. 

297 — Practical  results  of  this 
method. 

298 — Good  faith  in  this  respect 
always  shown  by  Congress. 

299 — Subsequent  debates  iii  Con- 
gress on  same  subject. 

300 — After  commercial  treaty  of 
1815  with  Great  Britain. 

.301 — Views  of  Mr.  King  of  Massa- 
chusetts. 

302 — Presentation  of  other  side 
by  Mr.  Hardin. 

303 — Result  of  conference;  ex- 
tract from  report. 

304 — President  Jackson's  views 
in  1834  in  regard  to  P'rench 
treaty  of  1831. 

305— Question  again  raised  re- 
garding Alaska  purchase 
in  1867. 

306 — Position  of  House  on  Alaska 
piircliase;  the  Senate 
makes  concessions. 

307 — Question  raised  in  1887  on 
Hawaiian  reciprocity 

treaty;  Mr.  Tucker's  re- 
port. 

417 


§280 


TREATY-JNIAKING  POWER  OF  THE  U.  S.  [CH.  X. 


Section 

308— Treaty  of  Paris  with  Spain, 
1898;  what  legislation  nec- 
essary. 

309 — Opinions  of  publicists  on 
this  subject. 

310 — Supreme  Court  decisions  on 
this  subject. 

311 — General  conclusions;  power 
of  Congress  to  frustrate 
and  abrogate  treaties. 

312 — Moral  and  ethical  questions 
arising. 

313 — Alexander  Hamilton's  views 
in  Federalist  not  followed 
by  the  Supreme  Court. 


Section 

314 — Position  of  Supreme  Court 
as  to  treaty  violations;  bur- 
den thrown  on  Congress. 

315 — Difference  between  munici- 
pal and  international  law 
in  this  respect. 

316 — Treaty  with  Denmark  con- 
sidered in  this  respect; 
tariff  legislation. 

317 — Chinese  exclusion;  conflict 
of  statutes  and  treaties; 
opinion  of  Justice  Field. 

318 — This  same  subject  treated 
at  length  in  a  subsequent 
chapter. 


§  279.  First  Congress  under  Constitution  meets ;  earliest 
tariff  statutes. — The  first  Congress,  under  the  new  Consti- 
tution, met  in  the  City  of  New  York  on  March  4, 1789.  No 
act  was  passed  until  June  1st,  when  the  first  statute  of  the 
United  States  Government  was  enacted,  regulating  the  time 
and  manner  of  administering  oaths  of  office ;  ^  on  Jul\^  4, 
1789,  Congress  exercised  its  power  to  protect  by  tariff  the 
manufactures  of  the  United  States,  by  the  second  statute 
placed  upon  the  statute  books  of  the  United  States,  the  first 
section  of  which  is  as  follows  :  "  Whereas,  it  is  necessary  for 
the  support  of  government,  for  the  discharge  of  debts  of  the 
United  States,  and  the  encouragement  and  protection  of 
manufactures  that  duties  be  laid  on  goods,  war^s  and  mer- 
chandise imported  :  Be  it  enacted  hy  the  Senate  and  House 
of  Representatives  in  Congress  assembled,  That  from  and  after 
the  first  day  of  August  next  ensuing,  the  several  duties  here- 
inafter mentioned  shall  be  laid  on  the  following  goods,  wares 
and  merchandise  imported  into  the  United  States  from  any 
foreign  power  or  place,  that  is  to  say  :  "  and  then  follow  the 
schedules."^ 

§  280.  Power  of  United  States  to  protect  manufactures 
discussed. — In  the  debate  on  this  statute  many  questions  were 
raised  as  to  the  power  of  the  United  States  to  "  protect " 
manufactures:  while  it  was  conceded  that  the  rio-ht  existed 


§279. 

1 1  U.  S.  Stat,  at  L.  p.  23. 
418 


nu.  S.   Stat,  at  L.  p.  24. 


CH.  X.]       TREATIES  AND  CONGKESSIONAL  ACTION.  §  280 

to  raise  revenue,  "  protection  "  to  many  seemed  beyond  the 
power  of  the  Central  Government,  because  it  was  not  specific- 
ally named  or  enumerated  in  the  Constitution  as  having 
been  delegated  by  the  States.  Under  the  leadership  of 
James  Madison,  however,  the  bills  became  statutes,  and  the 
Central  Government,  at  the  first  opportunity,  thus  exerted 
on  behalf  of  the  industries  of  the  States,  the  protecting  power 
which  the  States  themselves  could  not  have  done  under  any 
circumstances  or  conditions.^ 


§280. 

1  For  interesting  accounts  of  the 
debate  on  the  first  tariff  acts  see 
McMaster's  History  of  the  People 
of  tlie  United  States,  vol.  I,  pp.  545, 
et  seq.;  see  also  History  of  the  Pro- 
tective Tariff  Laws  by  R.  W.  Thomp- 
son, ex-Secretary  of  the  Navy  of 
the  United  States,  3d  edition,  Chi- 
cago, 1888,  from  which  the  follow- 
ing extract  is  taken  (from  chap. 
IV,  p.  47-54): 

"  The  first  important  law  passed 
by  the  first  Congress  indicated  its 
character  so  plainly  as  to  leave  no 
room  for  any  doubt  whatsoever. 
Its  title  was,  'An  act  for  laying  a 
duty  on  goods,  wares  and  merchan- 
dise imported  into  the  United 
States;'  and  its  first  section,  or 
that  part  which  properly  stands  as 
its  preamble,  is  in  these  expressive 
words: 

" '  Whereas,  it  is  necessary  for  the 
support  of  the  Government,  the 
discharge  of  the  debts  of  the  Uni- 
ted States,  and  the  encourageiuent 
andiirotection  of  mamtfactures,  that 
duties  be  laid  on  goods,  wares  and 
merchandise  imported.' 

"Plainer,  simpler,  or  more  expres- 
sive language  could  not  be  found. 
It  is  not  equivocal  in  the  least,  and 
every  common-sense  man,  with  ordi- 
nary intelligence,  can  understand 
its  meaning.  It  asserts  three  dis- 
tinct propositions :  first,  that  duties 


should  be  laid  for  the  support  of 
the  Government;  second,  that  they 
should  be  laid  for  the  payment  of 
the  public  debt;  and  third,  that 
they  should  be  also  laid  for  the  en- 
couragement and  protection  of 
manufactures.  Each  of  these  prop- 
ositions was  distinct  from  the 
other  two.  Yet,  whether  consid- 
ered singly  or  combined,  they  in- 
volved the  exercisfe  by  Congress 
of  clearly  granted  constitutional 
power — about  which,  at  that  time, 
there  was  no  difference  of  opinion. 
"It  has  been  said  that  this  pre- 
amble was  written  by  Mr.  Madison. 
This  is  probably  true,  as  the  senti- 
ments conveyed  by  its  language 
were  precisely  such  as  he  was 
known  to  entertain,  and,  more 
than  once,  expressed.  His  author- 
ship of  it,  however,  is  not  material, 
inasmuch  as — being  a  member  of 
Congress  at  the  time — he  supported 
and  voted  for  the  bill,  which  passed 
the  House  of  Representatives  by  a 
vote  nearly  unanimous,  there  hav- 
ing been  only  eight  votes  against 
it.  The  duties  discriminated  in 
favor  of  manufactures,  and  were 
therefcue  protective  as  the  language 
above  quoted  expressly  imports. 
The  preamble  was  manifestly  in- 
tended to  convey  this  idea,  for, 
although  not  absolutely  necessary 
to  the  law,  it  furnishes  a  rule  of 
interpretation  by  which  its   true 

419 


§282 


TREATY-MAKING  TOWER  OF  THE  U.  S. 


[CH.  X. 


§  -281.  Department  of  Foreign  Affairs  established;  the 
State  Department. — The  third  statute  imposed  a  duty  on 
tonnage,  and  the  fourth  was  "  An  Act  for  establishing  an  Ex- 
ecutive Department  to  be  denominated  the  Department  of 
Foreign  Affairs,"  passed  July  27,  1789,^  which  is  the  founda- 
tion of  the  present  State  Department  of  the  United  States 
throuo-h  which  all  neo;otiations  of  treaties,  and  all  relations 
with  foreign  powers  ever  since  that  date  have  been,  and  at 
present  are,  conducted.  The  Department  of  State  as  it  now 
exists  was  organized  under  subsequent  acts  of  Congress,  and 
is  now  conducted  under  the  provisions  of  the  Revised  Stat- 
utes in  relation  thereto. 

§282.  No  treaties  negotiated  until  1794. — Although  im- 
mediately after  the  adoption  of  the  Constitution,  the  courts 
were  called  upon  to  construe  the  effects  of  the  treaties  which 
had  been  negotiated  under  the  Confederation,^  and  to  deter- 
mine the  rights,  duties  and  liabilities  which  had  been  created 
thereby,  no  new  treaty  was  concluded  by  the  United  States, 
under  the  power  vested  in  the  Executive  and  Senate,  until 
more  than  five  years  after  the  adoption  of  the  Constitution  ; 
in  fact,  it  was  not  until  Washington's  second  term  of  office 


meaning  is  to  be  ascertained — it  is, 
in  other  words,  an  index  to  point 
out  the  legislative  intention.  The 
history  of  this  law  is,  consequently 
most  instructive,  not  only  on  ac- 
count of  its  great  general  import- 
ance, but  because  it  identifies  Mr. 
Madison,  by  his  direct  agency  in 
the  House  of  Representatives,  and 
Washington,  by  his  approval  of  it 
as  President,  and  nearly  all  the 
members  of  the  first  Congress,  with 
the  first  distinctive  measure  of  pro- 
tection which  the  exigencies  of  the 
public  service  and  the  common  in- 
terests of  the  country  demanded 
at  the  very  beginning  of  the  Gov- 
ernment.    .     .     . 

"  In  supporting  the  measure,  Mr. 
Madison  said:  '  There  may  be  some 
manufactures  which,  being  once 
formed,  can  advance  toward  perfec- 

420 


tion  without  any  adventitious  aid, 
while  others,  for  want  of  the  foster- 
inrj  hand  of  the  Government,  will  be 
unable  to  go  on  at  all.'  In  this  apt 
language  Mr.  Madison  embraced 
the  whole  question  of  constitu- 
tional power.  Although  it  had  not 
been  insisted  that  the  protection  of 
manufactures  would  violate  the 
Constitution,  yet,  with  the  motive 
already  indicated,  he  probably  de- 
sired to  place  the  question  of  con- 
stitutionality beyond  all  cavil,  by 
asserting,  at  once  and  unqualifi- 
edly, that  the  power  existed  as  a 
necessary  part  of  the  machinery  of 
the  new  Government." 

§281. 

1 1  U.  S.  Stat,  at  L.  p.  28. 

§282. 

1  Ware  vs.  Hylton,  U.  S.  Sup.  Ct. 
179G,  3  Dallas,  199  and  see  §  324,  et 


CH.  X.]      TREATIES  AND  CONGRESSIONAL  ACTION.  §  284 


that  the  po\vers  vested  in  him  as  President  to  make  treaties 
by  and  with  the  consent  of  two-thirds  of  the  Senate,  was  exer- 
cised. 

§  283.   Jay's   treaty ;    excitement  and  opposition. — In 

1 794,  however,  the  famous  Jay  treaty  ^  was  concluded  between 
Great  Britain  and  the  United  States ;  at  once  excited  discus- 
sion arose ;  questions  involving  the  extent  of  the  treaty- 
making  power,  as  to  the  right  of  the  President  and  the  Senate 
to  make  treaties,  the  extent  to  which  treaties  could  alter  ex- 
isting legislation,  and  also  the  right  or  duty  of  the  House  of 
Eepresentatives  to  participate  in  the  ratification  of  the  treaty, 
or,  if  not  in  the  ratification  itself,  in  the  legislation  necessary 
to  make  the  treaty  effectual,  were  debated,  not  only  in  Phila- 
delphia where  Congress  then  met,  but  throughout  the  entire 
fifteen  States,  for  by  that  time  Vermont  and  Kentucky  had 
been  admitted  to  the  Union.^ 

§  284.  Strained  relations  between  United  States  and 
Great  Britain;  Wasliington's  message.— Grave  causes  of 
difference  existed  at  the  time  of  the  negotiation  of  this  treaty 
between  the  United  States  and  Great  Britain;^  in  fact,  the 


seg.,Yol.  II,  for  this  and  other  cases 
affecting  treaty  of  peace  with 
Great  Britain. 

§283. 

iSee  note  to  §  285,  p.  422,  2J0st. 

2  Vermont  was  admitted  as  the 
fourteenth  State  of  the  Union  on 
March  4,  1791  (1  U.  S.  St.  at  L.  p. 
191;  act  passed  February  18,  1791). 
Kentucky  was  admitted  as  the  fif- 
teenth State  on  June  1, 1792  ( 1  U.  S. 
St.  at  L.  p.  189;  act  passed  Febru- 
ary 4,  1791). 

§284. 

iln  speaking  of  this  treaty,  J.  C. 
Bancroft  Davis  makes  tlie  follow- 
ing remarks,  and  gives  the  follow- 
ing references  in  his  notes  on  Great 
Britain,  p.  1321,  in  the  1889  edition 
of  the  "Compilation  of  Treaties 
between  the  United  States  and  For- 
eign Powers:  " 

"The  treaty  concluded  by  Jay 
on  the  19th  of  November,  1794,  re- 


moved or  suspended  these  grave 
causes  of  difference.  It  named  a 
day  for  the  withdrawal  of  British 
troops  from  the  territories  of  the 
United  States.  The  United  States 
undertook  to  make  compensation 
to  British  creditors  who  had  been 
prevented  by  '  lawful  impediments,' 
in  violation  of  the  treaty  of  1783, 
from  the  recovery  of  their  debts. 
Great  Britain  agreed  to  make  com- 
pensation to  the  merchants  and 
citizens  of  the  United  States  whose 
vessels  had  been  illegally  captured 
or  condemned.  The  United  States 
undertook  to  make  compensation 
to  certain  British  subjects  whose 
vessels  or  merchandise  had  been 
captured  within  the  jurisdiction  of 
the  United  States  and  brought  into 
the  same;  or  had  been  captured  by 
vessels  originally  armed  in  the 
ports  of  the  United  States.  It  was 
agreed  that   provisions  and  other 

421 


§285 


TREATY-MAKING  POWER  OP  THE  U.  S. 


[CH.  X. 


relations  between  the  two  countries  had  become  so  strained 
that  President  Washington  informed  both  Houses  of  Con- 
gress by  a  s])ecial  message  in  regai-d  to  the  occupation  by 
the  British  of  forts  in  the  Western  Territory  that  ''this  new 
state  of  things  suggests  the  propriety  of  placing  the  United 
States  in  a  posture  of  effectual  preparation  for  an  event 
which,  notwithstanding  the  endeavors  making  to  avert  it, 
may,  by  circumstances  beyond  our  control,  be  forced  upon 
us."  2 

§  285.  Rights  of  the  people ;  necessity  of  legislation  to 
enforce  the  treaty.  —The  Jay  treat}'-^  was  the  first  one  nego- 
tiated under  the  constitutional  power,  and  it  gave  rise  to 
many  important  points  affecting  the  people  in  their  relations, 
both  as  to  those  matters  which  were  admittedly  under  Fed- 
eral control,  and  as  to  those  which  were  admittedly,  in  the 
absence  of  foreign  relations,  exclusively  under  State  jurisdic- 
tion ;  not  only  national  and  commercial  relations  were  af- 
fected, but  the  relations  of  individual  debtors  to  British  cred- 


articles  not  generally  contraband 
of  war  should  not  be  confiscated  if 
seized,  but  that  the  owners  should 
be  fully  indemnified;  and  that 
vessels  approaching  a  blockaded 
port,  in  ignorance  of  the  blockade, 
should  not  be  detained,  nor  the 
caigo  confiscated  unless  contra- 
band. 

"The  instructions  to  Jay  em- 
braced many  other  subjects.  How. 
far  they  were  executed,  and  why 
he  failed  to  comply  with  some  of 
them,  will  appear  by  reference  to 
the  instructions  and  correspond- 
ence which  accompanied  the 
President's  message  of  June  8, 
transmitting  the  Treaty  to  the  Sen- 
ate. The  reasons  which  induced 
the  President  and  his  advisers  to 
assent  to  it  are  detailed  in  a  letter 
from  Pickering  to  Monroe  of  Sep- 
tember 12,  1795.  This  treaty  was 
the  cause  of  the  long  and  able  de- 
bates in  Congress,  which  have  been 
referred  to  in  the  Introductory 
422 


Note.  On  the  5th  of  May,  1796, 
President  Washington  submitted 
to  the  Senate  an  explanatory  arti- 
cle with  the  reasons  which  had 
made  it  necessary,  and  another  ex- 
planatory article  was  added  in 
March,  1798. 

"  The  appropriations  for  carry- 
ing into  effect  the  Treaty  of  1794 
were  made  by  Congress  on  the  6th 
of  May,  1796,  and  by  Parliament 
on  the  4th  of  July,  1797."  See 
§  295,  p.  429,  post. 

-The  message  was  a  very  brief 
one  dated  May  21,  1794,  and  will  be 
found  in  Richardson's  Messages  of 
the  Presidents,  vol.  I,  p.  l.>j. 

§285. 

1  Treaty  of  Amity,  Commerce  and 
Navigation;  concluded  November 
19,  1794;  ratifications  exchanged  at 
London,  October  28,  1795,  pro- 
claimed, February  29,  1796;  U.  S. 
Treaties  and  Conventions,  edition, 
18S9,  p.  379,  8  U.  S.  St.  at  L.  p.  116. 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  287 

itors  were  adjusted  and  settled.  As  existing  legislation  con- 
flicted to  some  extent  with  the  provisions  of  the  treaty,  the 
question  was  at  once  raised  whether  Article  YI  of  the  Con- 
stitution, which  makes  treaties  the  supreme  law  of  the  land, 
obviated  the  necessity  of  new  legislation  to  carry  those  pro- 
visions into  effect,  or  whether  the  treaty  was  a  simple  con- 
tract which  required  congressional  action  to  carry  it  out  and 
render  its  stipulations  effective  and  binding  upon  the  people. 

§  286.  General  discussion  of  these  questions.— All  of 
these  points  were  debated  not  only  in  Congress  and  in  State 
Legislatures,  but  also  by  the  people  through  the  medium  of 
the  press  and  pamphlets,  and  at  mass  meetings.^  It  is  neces- 
sary, therefore,  to  briefly  review  the  historical  facts  con- 
nected with  the  negotiation  and  ratification  of  this  treaty,  as 
well  as  the  proceedings  in  Congress  relating  thereto ;  this  is 
the  more  important  as  questions  which  were  almost  identical, 
arose,  and  were  debated  on  the  same  lines,  in  regard  to  trea- 
ties concluded  at  a  later  period,  and  which  will  be  hereafter 
referred  to.^ 

§  287.  John  Jay's  mission  to  England ;  negotiation  of 
treaty. — John  Jay  was  appointed  Envoy  Extraordinary  to 
His  Britannic  Majesty,  April  16,  1794.^  He  was  confirmed 
on  the  19th,  and  went  at  once  to  London,  where  he  entered 
into  negotiations  with  the  Foreign  Ofiice,  then  under  the  con- 
trol of  Lord  Grenville ;  on  the  19th  of  November,  1794,  he 
concluded  the  treaty  which  ever  since  has  been  known  by  his 
name,  and  which  was  the  basis  of  our  commercial  relations 
with  Great  Britain  from  its  ratification  until  the  war  of  1812. 
The  instrument  reached  the  Secretary  of  State  at  Philadel- 
phia on  March  7,  1795,  just  after  Congress  had  adjourned. 
The  president  called  a  special  session  of  the  Senate  for  June  8, 
1795  ;  when  it  convened  Washington  transmitted  the  treaty 
with  a  brief  message,  stating  that  it  was  "  for  you  in  your 


•;§  286. 

iSee  McMaster's  History,  vol.  2, 
cTiap-  IX. 

2  See  §  299,  p.  432,  post,  for  refer- 
ence to  subsequent  occasions  on 
which  this  question  was  discussed 
in  Congress. 


§287. 

1  The  documents  relating  to  John 
Jay's  mission  to  England  will  be 
found  in  vol.  I,  Foreign  Relations 
of  the  United  States  (Folio).  They 
are  condensed  in  Mr.  J.  C.  Bancroft 
Davis'  U.  S.  Treaties  and  Conven- 
tions, edition,  1889,  pp.  1321-1.322. 

423 


§  290  TREATY-MAKING  POWEU  OF  THE  U.  S.  [CH.  X. 

Avisdom  to  decide  wliether  you  will  advise  and  consent  that 
said  treaty  be  made  between  the  United  States  and  His  Britan- 
nic Majesty."^ 

§  288.  Ratificatiou  of  treaty  with  ameiidment.— The 
Senate  tinally  ag-reod  to  ratify  the  treaty  provided  Article  XII, 
which  related  to  the  West  India  Treaty,  would  be  suspended 
by  an  additional  article.  This  concession  was  made  by  Great 
Britain,  and  the  additional  article  was  incorporated  in  the 
treaty  ;  it  was  ratified,  as  thus  amended,  by  the  close  vote  of 
20  to  10,  exactly  two  thirds,  the  required  constitutional  ma- 
jorit}^'  The  ratifications  were  signed  by  the  President, 
transmitted  to  London  and  exchanged  October  28,  1795.^ 

§  289.  Popular  excitement ;  Freueli  and  English  parties. 
— From  the  time  that  the  treaty  Avas  published  until  long 
after  Congress  had  convened  in  December,  meetings  were 
held  throughout  the  whole  country,  most  of  them  for  the  pur- 
pose of  denouncing  the  treaty,  but  some  of  them  to  urge  its  rat- 
ification. By  reason  of  the  great  friendly  feeling  for  France, 
and  the  unfriendly  feeling  against  Great  Britain,  which  nat- 
urall}'  existed  as  the  outcome  of  the  war  for  Independence 
which  had  terminated  less  than  a  dozen  years  earlier,  great 
party  feeling  was  stirred  up  against  the  treaty,  and  to  a  great 
extent  the  people  of  the  United  States  w^ere  divided  into  what 
might  be  called  British  and  French  parties ;  it  was  indeed  a 
strange  sight  to  see  the  people  of  this  Republic  divided  on 
issues  affecting  two  foreign  European  nations.^ 

§  290.  Meeting  of  Congress ;  message  of  the  President. 
— While  the  treaty  had  a  large  majority  in  the  Senate,  such 
was  not  the  case  in  the  House  of  Representatives.  Congress 
met  on  the  7th  of  December,  1795,  and  was  opened,  accord- 


2  Ricliaidson's  Messages  of  the 
Presidents  vol.  1,  p.  170. 

§288. 

^Foi"  reference  to  otlier  treaties 
similarly  rutilied  with  amend ments 
see  §  465.  chap.  XVI,  Vol.  il. 

-  U.  S.  Treaties  and  Conventions, 
edition,  1889;  pp.  379,  1321;  see  also 
McMaster's  History  of  the  People 
of  the  United  States,  vol.  2, 
chap.  IX. 

424 


§289. 

1 A  graphic  account  of  this  na- 
tional debate  will  be  found  in  the 
9th  chapter  of  the  2d  volume 
of  McMaster's  History  of  the 
People  of  the  United  States,  to 
which  students  of  this  incident 
of  American  political  history  are 
referred,  as  in  detail  it  would  re- 
quire more  space  tlian  can  be  de- 
voted to  it  in  this  volume. 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION,  §  291 

ing  to  the  custom  of  those  days,  by  the  President,  in  person. 
No  direct  reference  was  made,  however,  to  the  treaty  either 
in  his  opening  address,  or  in  the  reply  which  it  was  then  cus- 
tomary for  the  Houses  to  make  to  the  President's  address, 
except  as  the  general  hope  was  expressed  in  the  House  reply, 
that,  by  treaty  and  amicable  negotiation,  all  causes  of  exter- 
nal discord  might  be  "  extinguished  on  terms  compatible 
with  our  national  rights  and  honor  and  with  our  Constitu- 
tion and  great  commercial  interests."  ^ 

Not  until  March  1,  1796,  were  the  ratifications  returned; 
the  treaty  together  with  the  fact  that  the  ratifications  had 
been  exchanged  being  transmitted  in  a  message  of  less  than 
six  lines  by  the  President  to  both  Houses  of  Congress.  De- 
bate at  once  began  in  Congress  as  to  the  extent  of  the  bind- 
ing force  of  those  stipulations  in  the  treaty  which  either 
contlicted  with  existing  legislation,  or  which  required  new 
legislation,  or  appropriations  of  money,  to  carry  them  into 
effect. 

§  291.  Request  of  House  of  Representatives  for  papers 
relating  to  treaty. — On  March  2d,  Mr.  Livingston  offered 
a  resolution  requesting  the  President  to  lay  before  the 
House  copies  of  the  instructions  to  the  Minister  of  the  United 
States  who  had  negotiated  the  treaty  with  Great  Britain, 
together  with  the  correspondence  and  other  documents  re- 
lating thereto,  with  the  exception  of  such  papers  as  any  ex- 
isting negotiations  might  render  improper  to  be  disclosed ; 
debate  then  followed  which  lasted  for  more  than  two  weeks, 
in  which  many  leading  members  participated,  and  the  treaty- 
making  power  was  discussed  in  every  phase  and  aspect,  both 
as  to  its  extent,  and  as  to  the  effect  of  treaties  upon  legisla- 
tion, both  State  and  Federal.^  On  March  24th,  the  resolu- 
tion was  carried  by  sixty-two  to  thirty-seven.  Messrs.  Liv- 
ingston and  Gallatin  were  sent  as  a  committee  to  present  the 
resolution  to  the  President,  who  replied,  as  they  reported  to 
the  House  on  their  return,  "  that  he  would  take  it  into  con- 
sideration." 


§290. 

1  Richardson's    Messages  of  the 
Presidents,  vol.  1,  p.  182-189. 


§291. 

1  Keforonce  is  again  made  to  Mc- 
Master's  History,  vol.  2,  cbnp.  IX. 

425 


J<  ■29-2 


TRKATY-MAKINT,   POWKR   OF  THE  U.  R.  [CH.  X. 


§  202.  President  Wasliiiii?loii's  reply  to  the  House The 

reply  returned  by  the  President  to  the  House  of  liepresen- 
tatives,  March  30,  1796,  showed  that  he  thoroughly  appreci- 
ated the  effect  of  acceding  to  the  request,  as  well  as  the  ef- 
fect that  the  precedent,  if  established,  might  have  in  altering 
the  entire  plan  of  the  Constitution,  as  to  the  powers  and  func- 
tions of  the  Executive.  He,  therefore,  declined  to  furnish 
the  papers.  This  reply  is  one  of  those  documents  that  will 
endure  in  the  constitutional  history  of  this  country  as  long 
as  the  Constitution  stands,  a  monument  alike  to  "Washington's 
astute  diplomacy  as  well  as  to  his  great  ability.  It  is  of 
suflBcient  importance  to  be  quoted  at  length,  and  it  will  be 
found  in  its  entiretv  in  the  notes  to  this  section.^ 


§  292. 

1 "  United  States,  March  30,  1796. 

"  To  the  House  of  Representatives 
of  the  United  States: 

"  With  the  utmost  attention  I  have 
considered  your  resolution  of  the 
24th  instant,  requesting  me  to  lay 
before  your  House  a  copy  of  the 
instructions  to  the  minister  of  the 
United  States  who  negotiated  the 
treaty  with  the  King  of  Great  Brit- 
ain, together  with  the  correspond- 
ence and  other  documents  relative 
to  that  treaty,  excepting  such  of 
the  said  papers  as  any  existing  ne- 
gotiation may  render  improper  to 
be  disclosed. 

"  In  deliberating  upon  this  subject 
it  was  impossible  for  me  to  lose 
sight  of  the  principle  which  some 
have  avowed  in  its  discus.sion,  or 
to  avoid  extending  my  views  to  the 
consequences  which  must  flow  from 
the  admission  of  that  principle. 

"  I  trust  that  no  part  of  my  con- 
duct has  ever  indicated  a  disposi- 
tion to  withhold  any  information 
which  the  Constitution  has  en- 
joined upon  the  President  as  a  duty 
to  give,  or  which  could  be  required 
of  him  by   either  House  of  Con- 

426 


gress  as  a  right;  and  with  truth  I 
affirm  that  it  has  been,  as  it  will 
continue  to  be  while  I  have  the 
honor  to  preside  in  the  Government, 
my  constant  endeavor  to  harmon- 
ize with  the  other  branches  thereof 
so  far  as  the  trust  delegated  to  me 
by  the  people  of  the  United  States 
and  my  sense  of  the  obligation  it 
imposes  to  'preserve,  protect,  and 
defend  the  Constitution'  will  per- 
mit. 

"The  nature  of  foreign  negotia- 
tions requires  caution,  and  their 
success  must  often  depend  on  se- 
crecy; and  even  -when  brought  to  a 
conclusion  a  full  disclosure  of  all 
the  measures,  demands,  or  eventual 
concessions  which  may  have  been 
proposed  or  contemplated  would 
be  extremely  impolitic;  for  this 
might  have  a  pernicious  influence 
on  future  negotiations,  or  produce 
immediate  inconveniences,  perhaps 
danger  and  mischief,  in  relation  to 
other  powers.  The  necessity  of 
such  caution  and  secrecy  was  one 
cogent  reason  for  vesting  the  power 
of  making  treaties  in  the  President, 
with  the  advice  and  consent  of  the 
Senate,  the  principle  on  which  that 
body  was  formed  confining  it  to  a 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  293 


§  293.  Effect  of  Washington's  reply ;  action  by  the 
Honse. — By  this  move  "Washington  forced  the  House  of  Rep- 


small  number  of  members.  To  ad- 
mit, then,  a  right  in  the  House  of 
Representatives  to  demand  and  to 
have  as  a  matter  of  course  all  the 
pipers  respecting  a  negotiation 
with  a  foreign  power  would  be  to 
establisli  a  dangerous  precedent. 

"  It  does  not  occur  that  the  inspec- 
tion of  the  papers  asked  for  can  be 
relative  to  any  purpose  under  the 
cognizance  of  the  House  of  Repre- 
sentatives, except  that  of  an  im- 
peachment, which  the  resolution 
has  not  expressed.  I  repeat  that 
I  have  no  disposition  to  withhold 
any  information  which  the  duty 
of  my  station  will  permit  or  the 
public  good  shall  require  to  be 
disclosed;  and,  in  fact,  all  the  pa- 
pers affecting  the  negotiation  with 
Great  Britain  were  laid  before  the 
Senate  when  the  treaty  itself  was 
communicated  for  their  considera- 
tion and  advice. 

"  The  course  which  the  debate  has 
taken  on  the  resolution  of  the 
House  leads  to  some  observations 
on  the  mode  of  making  treaties 
under  the  Constitution  of  the 
United  States. 

"  Having  been  a  member  of  the 
General  Convention,  and  knowing 
the  principles  on  which  the  Con- 
stitution was  formed,  I  have  ever 
entertained  but  one  opinion  on  this 
subject ;  and  from  the  first  estab- 
lisliment  of  the  Government  to 
this  moment  my  conduct  lias  ex- 
emplified that  opinion — that  the 
power  of  making  treaties  is  exclu- 
sively vested  in  the  President,  by 
and  witli  the  advice  and  consent  of 
the  Senate,  provided  two-thirds  of 
the  Senators  present  concur;  and 
that  every  treaty  so  made  and 
promulgated     thenceforward     be- 


came the  law  of  the  land.  It  is 
thus  that  the  treaty-making  power 
has  been  understood  by  foreign 
nations,  and  in  all  the  treaties 
made  with  them  we  have  declared 
and  they  have  believed  that,  when 
ratified  by  the  President,  with  the 
advice  and  consent  of  the  Senate, 
they  became  obligatory.  In  this 
construction  of  the  Constitution 
every  House  of  Representatives 
has  heretofore  acquiesced,  and 
until  the  present  time  not  a  doubt 
or  suspicion  has  appeared,  to  my 
knowledge,  that  this  construction 
was  not  the  true  one.  Nay,  they 
have  more  than  acquiesced;  for  till 
now,  without  controverting  the 
obligation  of  such  treaties,  they 
have  made  all  the  requisite  pro- 
visions for  carrying  them  into 
effect. 

"  There  is  also  reason  to  believe 
that  this  construction  agrees  with 
the  opinions  entertained  by  the 
State  conventions  when  they  wei'9 
deliberating  on  the  Constitution, 
especially  by  those  who  objected 
to  it  because  there  was  not  re- 
quired in  commercial  treaties  the 
consent  of  two-thirds  of  the  whole 
number  of  the  members  of  the 
Senate  instead  of  two  thirds  of  the 
Senators  present,  and  because  ia 
treaties  respecting  territorial  and 
certain  other  rights  and  claims  the 
concurrence  of  threc-foui-ths  of 
the  whole  number  of  the  members 
of  both  Houses,  respectively,  was 
not  made  necessary. 

"  It  is  a  fact  declared  by  the  Gen- 
eral Convention  and  universally 
understood  that  the  Constitution 
of  the  United  States  was  tha  result 
of  a  spirit  of  amity  and  mutual 
concession;  and  it  is  well  known 

427 


§294 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  X. 


resentatives  to  recognize  the  fact  tliat  the  treaty-making 
power  of  the  Constitution  was  lodged  in  the  Executive,  sub- 
ject only  to  the  i-atification  of  two-thirds  of  the  Senate,  and 
that  the  House  could  not  participate  therein  as  a  matter  of 
right,  to  any  extent  whatever ;  a  resolution  was  at  once 
passed  by  the  House  of  Representatives,  which  recognized 
the  sound  basis  on  which  the  President's  reply  was  based, 
and  in  which  that  body  distinctly  disclaimed  any  agency  in 
making  treaties,  but  asserted  the  principle  that  when  a  call 
was  made  on  the  President  for  information  it  was  not  neces- 
sary to  state  why  the  information  was  wanted ;  the  object 
of  this  resolution  was  evidently  to  convey  the  idea  that  the 
House  did  not  wish  to  investigate  as  to  hoio  the  Executive  had 
made  the  treaty,  but  to  ascertain  what  legislation  was  neces- 
sary to  carry  it  into  effect,  and  what  the  dut}'  of  the  House 
was  in  this  respect.  It  was,  however,  a  distinct  victory  for 
the  Executive.^ 

§  204.  Other  treaties  ratified  by  the  Senate,  and  before 
tlie  House. — Meanwhile  other  treaties  had  been  negotiated 
Avith  Spain,  Algiers,  and    some  of    the  Indian   tribes,  all 


that  under  this  influence  the 
smaller  States  were  admitted  to  an 
equal  representation  in  the  Senate 
with  the  lar<i[er  States,  and  that 
this  branch  of  the  Government  was 
invested  with  great  powers,  for  on 
the  equal  participation  of  those 
powers  the  sovereignty  and  politi- 
cal safety  of  the  smaller  States 
were  deemed  essentially  to  depend. 
"  If  other  proofs  than  these  and 
the  plain  letter  of  the  Constitution 
itself  be  necessary  to  ascertain 
the  point  under  consideration, 
they  may  be  found  in  the  journals 
of  the  General  Convention,  which 
I  have  deposited  in  the  office  of 
the  Department  of  State.  In  those 
journals  it  will  appear,  tliat  a 
proposition  was  made  '  that  no 
treaty  should  be  binding  on  the 
United  States  which  was  not  rati- 
fied by  law,'  and  that  the  propo- 
sition was  explicitly  rejected. 

428 


"  As,  therefore,  it  is  perfectly 
clear  to  my  understanding  that 
the  assent  of  the  House  of  Repre- 
sentatives is  not  necessary  to  the 
validity  of  a  treaty;  as  the  treaty 
with  Great  Britain  exliibits  in  it- 
self all  the  objects  requiring  legis- 
lative provision,  and  on  these  the 
papers  called  for  can  throw  no 
light,  and  as  it  is  essential  to  the 
due  administration  of  the  Govern- 
ment that  the  boundaries  fixed  by 
the  Constitution  between  the  dif- 
ferent departments  should  be 
preserved,  a  just  regard  to  the 
Constitution  and  to  the  duty  of  my 
office,  under  all  the  circumstances 
of  this  case,  forbids  a  compliance 
with  your  request.  Go.  Washing- 
ton." Richardson's  Messages  of 
the  Presidents,  vol.  1,  p.  194-196. 

§293. 

1  See  McMaster's  History,  vol.  II, 
chap.  IX,  p.  276. 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  296 

of  which  bad  been  ratified  by  the  Senate ;  the  House,  there- 
fore, had  before  it  at  this  thne  no  less  than  four  treaties, 
every  one  of  which  had,  according  to  the  Constitution,  be- 
come the  supreme  law  of  the  land,  but  all  requiring  more  or 
less  Congressional  legislation  to  make  them  operative  in  cer- 
tain respects,  such  as  tariff,  tonnage  dues,  establishment  of 
commissions  and  appropriations;  the  chief  questions  which 
had  been  raised  in  regard  to  the  treaty  with  Great  Britain 
were  equally  applicable  to  all  of  the  treaties,  and  they  necessa- 
rily assumed  even  greater  proportions  than  before,  so  that  the 
position  became  more  and  more  complicated  as  the  debate 
continued. 

§  295.  Fisher  Ames's  address  and  argument ;  treaty 
legislation  enacted. — The  leading  speech  of  this  debate  was 
made  b}'^  Fisher  Ames,^  in  Committee  of  the  Whole  in  sup- 
port of  a  resolution  for  the  enactment  of  legislation  to  carry 
the  treaties  into  effect ;  under  the  influence  of  a  great  burst 
of  oratory  from  that  eminent  Bostonian,  the  resolution  was 
adopted  by  a  tie  vote  of  the  Committee,  which  was  made 
affirmative  by  the  casting  vote  of  the  chairman ;  the  Com- 
mittee at  once  rose,  the  session  of  the  House  was  resumed, 
and  the  resolution  carried  by  a  vote  of  fifty-one  to  forty- 
eight.  On  May  6,  179G,  the  legislation  was  enacted  and  ap- 
proved, giving  effect  to  all  provisions  of  the  above  mentioned 
treaties  which  required  legislative  assistance.^ 

§  296.  Position  of  House  of  Rei)resentatives  in  treaty 
matters  defined. — Thus  ended  the  first  of  the  great  parlia- 
mentary battles  fought  by  the  House  of  Representatives  to 
gain  control  of  the  treaty-making  power  of  the  United 
States ;  while  one  point  was  definitely  settled,  other  points 
still  remain  unsettled,  as  several  of  them  do  to-day.  It  was 
definitely  decided  that  the  House  of  Representatives  had  no 
voice  whatever  in  the  negotiation  or  ratification  of  a  treaty  ; 
that  the  treaty-making  power  is  vested  exclusively  in  the 
Executive,  subject  only  to  the  prescribed  ratification  by  two- 


§295. 

1  For  an  account  of  Mr.  Ames,  and 
this  address,  see  McMaster's  His- 
tory, vol.  2,  chap.  IX,  pp.  277,  ct 
scq. 


2  Fourth  Congress,  Sess.  I,  chap- 
ters XVII,  XVIII,  XIX  and  XX; 
1  U.  S.  Stat,  at  L.  450,  400.  The 
acts  are  very  brief,  tlie  four  together 
occupying  only  a  page  and  a  half. 

429 


§  'JOT  TREATV-MAIvING  POWER  OF  THE  U.  S.  [CH.  X. 

thirds  of  the  Senate ;  that  when  the  Executive  makes  a 
treaty  and  the  Senate  ratifies  it  in  a  constitutional  manner, 
the  treaty  becomes  the  supreme  hiw  of  the  hind  ;  on  the 
other  hand,  as  was  subsequently  stated  by  Chief  Justice 
Marshall  in  one  of  the  opinions  which  will  be  referred  to  at 
greater  length  in  a  subsequent  chapter,^  it  was  practically 
decided  that  although  a  treaty  becomes  the  supreme  law  of 
the  land  as  soon  as  it  is  ratified  as  to  every  provision  which 
can  be  enforced  without  legislation,  it  remains  ineffectual  as 
to  those  matters  which  do  require  legislation,  or  the  appro- 
priation of  money,  and  can  only  be  enforced  after  hoth  Houses 
of  Congress  enact  appro})riate  legislation,  in  the  shape  of 
entirely  new  laws,  or  those  which  modify  or  repeal  such  ex- 
isting statutes  as  conflict  with  the  treaty,  or  which  appro- 
priate money  to  carry  out  such  provisions  as  entail  expendi- 
tures and  payments. 

§  297.  Practical  results  of  this  method. — During  the 
ninety -five  years  which  have  elapsed  since  the  debate  over  the 
Jay  treaty  in  the  House  of  Representatives  many  statutes 
have  been  passed  to  carr}^  out  treaty  stipulations,^  both  as  to 
appropriations  and  other  measures  necessary  to  make  trea- 
ties neo-otiated  by  the  Executive  and  ratified  bv  the  Senate 
effective.  Mau}^  of  these  statutes  have  been  modifications 
of  tariff  and  tonnage  laws,  some  of  them  general  in  their  na- 
ture and  scope,  and  therefore  applicable  to  all  treaties  of  the 
class  referred  to  in  the  statutes,  and  others  specific  and  appli- 
cable only  to  the  treaty  specified.  It  would  hardly  be  worth 
while  to  enumerate  all  of  them  ;  a  few  examples  are  given  in 
the  notes  appended  to  this  section,  which  indicate  the  vari- 

sions  of  claims  conventions  will  be 
found  either  in  full,  or  fully  re- 
ferred to,  in  Moore's  History  of  Ar- 


§296. 

1  Foster  &  Elain  vs.  Neilson,  U.  S. 
Sup.  Ct.  1829;  2  Peters,  253.  Maii- 
SHALL,   Ch.  J.,  and  see  §314,  post,   bitration  under  the  history  of  the 


and  §  364,  Vol.  II. 
§  297. 

1  Reference  has  already  been 
made  to  the  statutes  carrying  out 
tbe  treaties  with  Great  Britain  and 
other  powers  in  May,  1796  (see 
note  2,  §  295,  ante). 


various  arbitrations,  or  adjust- 
ments by  commissions  between  the 
United  States  and  foreign  govern- 
ments. 

After  the  treaties  with  Gi'eat 
Britain  in  regard  to  Canadian  mat- 
ters, fisheries,  reciprocal  tariff  ar- 


Many  of  the  statutes  enacted  by  i  rangements,  etc.,  statutes  have  al- 
Congress  carrying  out  the   provi- !  ways  been   passed    to    make    the 

430 


CH.  X.]      TREATIES  AND  CONGRESSIONAL  ACTION. 


298 


ous  methods  which  have  been  adopted  by  Congress  to  carry 
out  the  contract  elements  of  treaties  with  foreign  powers.^ 

§  298.  Good  faith  in  this  respect  always  sliowu  by  Con- 
gress.— It  is  a  remarkable  fact  that  while  the  great  moral 
question  still  remains  undecided  as  to  how  far  the  House  of 
Representatives  is  bound,  as  a  matter  of  good  faith,  to  carry 
out,  by  legislative  enactments  and  appropriations,  provisions 
of  treaties,  which,  without  its  participation  or  approval,  and 
possibly  against  its  own  judgment,  have  been  made  by  the 
President  and  ratified  by  the  Senate,  it  has  remained  so  in 
theory  only  and  not  in  practice ;  as  a  matter  of  fact,  no  treaty 
has  ever  been  made  and  ratified,  by  which  the  faith  of  the 
Union  has  been  pledged,  that  the  House  has  not  fully  carried 
out  by  enacting  the  necessary  legislation  so  far  as  appropria- 
tions and  modifications  of  existing  laws  are  concerned  ;  in- 
deed, instances  might  be  cited  in  which  members  of  the  House 
of  Representatives  have  waived  party  and  personal  feelings 
so  that  there  could  be  no  question  as  to  the  good  faith  of  the 
United  States  in  carrying  out  treaty  stipulations.^ 


treaty  stipulations  effectual.  In 
regard  to  extradition  cases  there 
was  much  question  as  to  the  neces- 
sity of  legislation,  but  that  is  now 
obviated  by  the  statute  of  1848  (9 
U.  S.  Stat,  at  L.  p.  302),  the  pro- 
visions of  the  Revised  Statutes, 
(§§5270,  et  seq.)  and  the  amend- 
ments thereto  which  cover  not  only 
all  existing  treaties  but  all  treaties 
hereafter  made,  so  far  as  extradi- 
tion provisions  are  concerned. 
See  §§  432,  et  seq.,  post. 

2  Consult  Index  of  U.  S.  Rev.  Stat. 
under  Tkeaties.  See  also  for  va- 
rious general  provisions  as  to  carry- 
ing out  treaty  stipulations. 

§298. 

1 A  notable  instance  was  after 
the  commission  appointed  under 
the  Treaty  of  Washington  of  1871, 
to  adjust  the  difference  to  be  paid 
by  the  United  States  for  the  excess 
of  value  of  fishery  privileges  off  the 
British  coast,  granted  to  American 


fishermen,  over  those  granted  to 
Canadian  fishermen  along  the 
coasts  of  the  United  States  rendered 
its  decision  awarding  $5,500,000  to 
Great  Britain.  This  award,  kuown 
as  the  Halifax  award,  was  made  in 

1877.  It  was  considered  as  unjust 
and  excessive,  and  grave  questions 
were  raised  as  to  the  appointment 
of  the  third  arbitrator.  Many  mem- 
bers of  Congress  thought  tliat  the 
award  was  so  unjust  that  it  should 
not  be  paid,  the  feeling,  however, 
that  the  United  States  was  bound 
to  pay  it  as  the  result  of  a  treaty  ob- 
ligation prevailed,  and  on  June  20, 

1878,  the  amount  was  included  in 
the  final  clause  of  the  Sundry  Civil 
Expense  act;  the  act,  however, 
placed  the  amount  of  the  award  un- 
der the  direction  of  the  President 
to  be  paid  by  him,  "  if  after  cor- 
respondence with  the  Bx'itish  Gov- 
ernment, on  the  subject  of  the  con- 
formity of  the  awards  to  the  re- 

431 


§  300  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  X. 

§  299.  Subsequent  debates  iu  Congress  on  same  subject. 

— Congressional  debate  similar  to  that  over  the  Jay  treaty, 
as  to  the  extent  of  the  rights  and  the  duty  of  the  House  of 
Representatives  in  regard  to  legislation  necessary  and  proper 
to  make  treaties  effectual,  has  often  been  renewed  ;  but  it  will 
only  be  possible  in  a  volume  of  this  size  to  refer  briefly  to 
the  most  important  occasions;  wiiich  were  in  1816,  in  regard 
to  the  Commercial  Treaty  with  Great  Britain  ;Mn  1834:  in 
regard  to  the  treaty  with  France;^  in  1867  after  the  treaty 
with  Russia  ceding  Alaska;'^  iu  1887  while  the  Hawaiian 
treaty  was  pending;^  and  in  1899  after  the  treaty  with  Spain 
terminating  the  Spanish  war  and  ceding  Porto  Rico,  Guam 
and  the  Philippines.^  ^ 

§  300.  After  comraercLal  treaty  of  1815  with  Great 
Britain. — After  the  ratilication  of  the  Treaty  of  Commerce 
of  1815  with  Great  Britain,  an  extended  debate  took  place 
in  the  House  on  this  subject;  one  element  of  Congress  took 
the  position  that  the  treaty  itself  so  altered  existing  laws 
that  no  further  legislation  was  necessary,  while  the  other 
led  by  Mr.  Tucker,^  (progenitor  of  John  Randolph  Tucker, 
whose  report  seventy  years  later  followed  the  same  views 
of  his  ancestor,^)  contended  that  no  commercial  regulation 
could  be  made  by  a  treaty,  or  that  any  laws  could  be  modi- 
fied to  comply  therewith  without  the  action  of  both  Houses. 
Mr.  Randolph,  another  progenitor  of  John  Randolph  Tucker, 
took  the  same  view.^  The  debate  was  lengthy  and  can  be 
found  in  full  in  the  Annals  of  Congress  for  the  First  Session 


quirements  of  the  treaty  and  to  the 
terms  of  the  question  thereby  sub- 
mitted to  tlie  Commission,  the  Pres- 
ident shall  deem  it  his  duty  to  make 
the  payment  witliout  further  com- 
munication with  Congress,"  and  if 
he  deemed  it  necessaryf or  the  honor 
of  the  Nation  so  to  do.  See  Reso- 
lution, 20  U.  S.  Stat,  at  L.  p.  240. 
For  a  full  account  of  tliis  affair  and 
the  protest  of  the  United  States 
against  the  award,  prepared  by  Mr. 
Win.  M.  Evarts,  Secretary  of  State, 
and  the  circumstances  under  which 
the  $5,500,000  was  paid  on  Novem- 

432 


ber  21,  1878,  see  Foreign  Relations 
Reports  of  the  United  States  for 
1878,  pp.  290,  et  seq.,  and  volume  2, 
Moore's  Hist,  of  Arbitration. 
§  299. 

1  See  §  300,  post. 

2  See  §  304,  p.  437,  post. 

3  See  §  305,  p.  438,  post. 

4  See  §  307,  p.  439,  post. 

5  See  §  308,  p.  440,  post. 

a  See  note  on  p.  458,  post. 
§300. 

1  Annals  of  Cong.,  1815-16,  p.  463. 

2  See  §  307,  p.  439,  post. 

8  Annals  of  Cong.,  1815-16,  p.  .533. 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  301 

of  the  Fourteenth  Congress,  1815-1816 ;  the  necessary  acts 
were  finall}'  passed  by  which  the  tariff  was  regulated  and  the 
treaty  carried  into  effect.^ 
§301.  Views  of  Mr.  King  of  Massachusetts In  the 

course  of  the  debate  Mr.  Cyrus  King  of  Massachusetts  stated 
that  he  had  made  an  investigation  of  the  question  with  the 
following  result : 

"The  result  of  my  investigation  on  this  subject  is:  that 
whenever  a  treaty  or  convention  does,  by  any  of  its  provi- 
sions, encroach  upon  any  of  the  enumerated  powers  vested  by 
the  Constitution  in  the  Congress  of  the  United  States,  or  any 
of  the  laws  by  them  enacted  in  execution  of  those  powers, 
such  treaty  or  convention,  after  being  ratified,  must  be  laid 
before  Congress,  and  such  provisions  cannot  be  carried  into 
effect  without  an  act  of  Congress.  For  instance,  whenever 
a  treaty  affected  duties  on  imposts,  enlarging  or  diminishing 
them,  as  the  present  one  did  to  diminish  ;  whenever  a  treaty 
went  to  regulate  commerce  with  foreign  nations,  as  that 
expressly  did  with  one,  as  the  power  to  lay  duties  and  the 
power  to  regulate  commerce  are  expressly  given  to  Congress, 
such  provisions  of  such  treaty  must  receive  the  sanction  of 
Congress  before  they  can  be  considered  as  obligatory  and  as 
part  of  the  municipal  law  of  this  country.  And  this  con- 
struction is  strengthened  by  a  part  of  the  general  power  given 
to  Congress,  following  the  enumerated  powers,  'to  make  all 
laws  which  shall  be  necessary  and  proper,  for  carr^nng  into 
execution  the  foregoing  powers,  and  all  other  powers  vested 
by  the  Constitution  in  the  Government  of  the  United  States, 
or  in  any  department  or  office  thereof.'  In  other  words,  for 
carrying  into  execution  the  treaty-making  power  (that  being 
among  the  other  powers)  in  all  cases  where  it  has  been  ex- 
ercised on  subjects,  placed  by  the  Constitution  within  the 
control  of  the  legislative  department.  This  construction  is 
further  strengthened  by  the  concession  of  honorable  gentle- 
men, in  one  case,  that  where  appropriations  of  money  are 
necessary  for  carrying  the  provisions  of  any  treaty  into  effect, 
there  legislative  provision  is  necessary.  Now,  sir,  to  concede 
that  the  sanction  of  Congress  is  necessary  in  one  case  of 

^S  U.  S.  Stat,  at  L.  p.  255. 

28  433 


§  302  TREATY-]MAKING  POWER  OF  THE  U.  S.  [CH.  X. 

enumerated  and  specilied  power,  is  to  concede  it  in  all  such 
cases.  !N"or,  sir,  can  any  serious  inconvenience  arise  from 
this  construction.  As  to  negotiations  with  foreign  Powers, 
our  Ministers  will  always  know  the  peculiar  structure  of  our 
Government ;  nor  can  foreign  Ministers,  who  may  ever  be 
sent  to  treat  with  us,  be  ignorant  thereof.  Besides,  the  dis- 
tinction, as  to  the  several  kinds  of  treaties,  is  well  known ; 
some,  respecting  solely  our  external  relations,  or  the  inter- 
course between  our  Government  and  that  of  a  foreign  Power, 
will  execute  themselves,  or  are  perfect  without  any  legisla- 
tive aid ;  and  it  can  instantly  be  determined,  from  the  nature 
of  the  provisions,  when  legislative  aid  is  necessary.  Further, 
sir,  your  Government  has  well  understood  this  distinction. 
Some  ti'eaties  they,  by  their  proclamations,  merely  ratify 
and  confirm,  where  legislative  aid  is  necessarj'^,  as  in  the 
present  case;  others,  they  not  only  ratify  and  confirm,  but 
enjoin  an  observance  thereof  upon  all  our  citizens,  as  will  be 
seen  by  turning  to  the  ratification,  by  Mr.  Jefferson,  of  sev- 
eral treaties  published  in  the  seventh  volume  United  States 
laws.  The  fear  that  the  President  and  Senate  (they  must 
both,  or  two-thirds  of  the  latter,  concur)  will  agree  with  the 
House  in  passing  an  improper  law  on  the  subject  of  a  treaty 
which  they  had  before  ratified,  cannot  be  weU  founded. 
There  is  much  more  reason  to  fear  that  they  ma}'  be  induced 
to  ratify  a  treaty  requiring  legislative  provision,  which  the 
House  ouffht  to  refuse.  Should  a  case  of  that  kind  occur, 
while  I  have  the  honor  to  be  one  of  the  Kepresentatives  of 
the  people,  I  shall  have  no  hesitation,  with  my  brethren,  to 
interpose  ourselves  between  the  Executive  and  the  people, 
in  the  defence  of  their  rights,  or  the  freedom  of  our  countr3^ 
Far,  then,  from  shrinking  from  what  my  honorable  friend 
is  pleased  to  call  an  awful  responsibilit}",  I  should  think  it  a 
sacred  duty  to  meet  the  crisis,  resist  the  encroachment,  and 
leave  the  consequences  with  God.  I  never  will  consent  that 
the  House  of  Representatives  of  the  people  shall  become  a 
mere  Parliament  of  Paris,  to  register  the  edicts  of  the  Presi- 
dent. I  shall  vote  for  the  bill."  ^ 
§  302.  Presentation  of  other  side  by  Mr.  Hardin. — The 

§301. 

1  Anuals  u£  Cougress,  1815-1816,  pp.  538-539. 
434 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  302 

other  side  of  the  question  was  presented  by  Mr.  Hardin  as 
follows: 

''Gentlemen  had  said,  that,  on  a  commercial  subject,  no 
treaty  could  be  obligatory,  because  the  Constitution  had  as- 
signed to  Congress  the  regulation  of  commerce.  Where, 
then,  said  he,  will  gentlemen  stop  ?  To  Congress,  they  say, 
is  delegated  the  exclusive  jurisdiction  over  everything.  Ac- 
cording to  their  construction,  therefore,  the  treaty-making 
power  was  impotent,  a  nullity,  it  could  do  nothing;  it  could 
not  make  peace,  because  peace  repeals  war,  the  right  of  mak- 
ing^ which  is  delecjated  to  Congress :  and  it  could  not  form 
alliances,  for  the  same  reason.  But  gentlemen,  he  observed, 
seemed  not  to  recollect  the  old  logical  maxim,  that  he  who 
proves  too  much,  proves  nothing.  The  President,  say  they, 
cannot  repeal  the  excise ! — no ;  but  the  President  can  make 
a  peace  without  the  concurrence  of  that  House,  and  fortu- 
nate it  was,  that  he  could  do  so.  We  now,  said  Mr.  H., 
feel  the  happy  effects  of  that  power,  and  conceive  that  a 
treaty  of  peace  has  been  accomplished  without  any  encroach- 
ments, or  pretended  encroachments  on  our  Congressional 
acts.  The  power  to  treat  generally,  he  said,  was  vested  in 
the  President  by  the  Constitution — but  to  the  law  of  nations 
it  was  left,  to  determine  the  limitations  of  that  power.  If  it 
be  true,  said  Mr.  H.,  that  by  the  terms  of  the  Constitution 
of  the  United  States,  this  treaty  is  already  the  law  of  the 
land,  then  is  the  treaty  guaranteed  by  that  Constitution; 
and  yet  gentlemen  insist  that  it  is  not  valid,  and  that  this 
House  ought  to  be  consulted.  By  the  Constitution  we  are 
forbidden  to  be  heard  in  the  subject,  yet  they  will  have  it 
otherwise,  and  by  this  species  of  indirection,  this  left-handed 
course,  bring  the  treaty  under  our  legislative  cognizance. 
Sir,  I  say  we  cannot  do  indirectly  that  which  we  are  for- 
bidden to  do  directly.  Treaties  might  be  made,  no  doubt, 
he  said,  for  the  execution  of  which  it  might  be  necessary  to 
call  upon  the  House  to  make  laws ;  offensive  and  defensive 
treaties  for  instance,  which  could  not  otherwise  be  carried 
into  effect ;  but  when,  as  in  the  present  case,  the  treaty  was 
complete,  and  capable  of  executing  itself,  nothing  of  the  kind 
was  necessary. 

"As  to  the  instance  which  had  been  adduced  of  Congress 

435 


§  303  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  X. 

being  called  upon  to  enact  laws  for  carrying  treaties  into 
effect,  he  believed  that  there  was  not  one  of  thein  similar  to 
this.  The  case  of  Jay's  Treaty  was  not.  The  Federalists 
supported  that  on  two  grounds :  one  that  it  was  a  good 
treaty  ;  the  other  that,  whether  good  or  bad,  it  would  not 
be  consistent  with  the  honor  of  the  country  to  reject  it;  but 
it  never  was  brought  forward  as  this  is,  a  re-echo  of  itself  in 
the  shape  of  a  bill.  And  as  to  the  cases  taken  from  the  pro- 
ceedings of  the  British  records,  the  organization  of  that  gov- 
ernment was  in  all  respects  so  different  from  that  of  ours, 
that  it  was  impossible  to  argue  fairly  or  conclusively  from 
the  one,  to  the  other."  ^ 

§  303.  Result  of  conference ;  extract  from  report.— The 
Conference  Committee  between  the  House  and  the  Senate 
made  a  report  in  which  this  point  was  discussed  at  length, 
and  should  be  examined  by  any  one  studying  this  subject ; 
it  contains  the  following  statement  of  principles: 

"  AVithout  entering  upon  an  extensive  inquiry  in  relation 
to  the  treaty-making  power,  the  committee  will  venture  to 
define,  as  accurately  as  they  can,  the  real  line  which  at  pres- 
ent divides  the  contending  parties.  It  is  of  less  importance 
to  ascertain  how  far  the}"  have  heretofore  disagreed,  or  may 
hereafter  differ,  than  to  discover  what  it  is  precisely  that  now 
divides  them. 

"  In  the  performance  of  this  duty  the  committee  of  the 
House  of  Representatives  are-  inclined  to  hope  that  it  will 
sufficiently  appear,  that  there  is  no  irreconcilable  difference 
between  the  two  branches  of  the  Legislature. 

"  They  are  persuaded  that  the  House  of  Representatives 
does  not  assert  the  pretension  that  no  treaty  can  be  made  with- 
out their  assent ;  nor  do  they  contend  that  in  all  cases  legis- 
lative aid  is  indispensably  necessary,  either  to  give  validity 
to  a  treaty,  or  to  carry  it  into  execution.  On  the  contrary, 
they  are  believed  to  admit,  that  to  some,  nay  many  treaties, 
no  legislative  sanction  is  required,  no  legislative  aid  is  neces- 
sary. 

"  On  the  other  hand  the  committee  are  not  less  satisfied  that 
it  is  by  no  means  the  intention  of  the  Senate  to  assert  the 

§302. 

1  Annals  of  Congress,  1815-1816,  pp.  544-545. 

436 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  304 

treaty-making  power  to  be  in  all  cases  independent  of  the 
legislative  authority.  So  far  from  it,  that  they  are  believed 
to  acknowledge  the  necessity  of  legislative  enactment  to  carry 
into  execution  all  treaties  which  contain  stipulations  requir- 
ing appi'opriations,  or  which  might  bind  the  nation  to  lay 
taxes,  raise  armies,  to  support  navies,  to  grant  subsidies,  to 
create  States,  or  to  cede  territory;  if  indeed  this  power  ex- 
ists in  the  Government  at  all.  In  some  or  all  of  these  cases, 
and  probably  in  man}'"  others,  it  is  conceived  to  be  admitted, 
that  the  legislative  body  must  act,  in  order  to  give  effect  and 
operation  to  a  treaty ;  and  if  in  any  case  it  be  necessary,  it 
may  confidently  be  asserted  that  there  is  no  difference  in 
principle  between  the  Houses ;  the  difference  is  only  in  the 
application  of  the  principle.  For  if,  as  has  been  stated,  the 
House  of  Representatives  contend  that  their  aid  is  only  in 
some  cases  necessary,  and  if  the  Senate  admit  that  in  some 
cases  it  is  necessary,  the  inference  is  irresistible,  that  the 
only  question  in  each  case  that  presents  itself  is,  whether  it 
be  one  of  the  cases  in  which  legislative  provision  is  requisite 
for  preserving  the  national  faith,  or  not."  ^ 

§304.  President  Jackson's  views  in  1834  in  regard  to 
French  treaty  of  1831 — In  1834  the  question  was  again 
raised  in  connection  with  the  refusal  of  France  to  carry  out 
the  reciprocal  provisions  contained  in  the  treaty  of  1831. 
President  Jackson  took  the  position  that  a  treaty  involving 
commercial  regulations  had  to  be  submitted  to  Congress  in 
order  to  be  carried  into  full  execution.^ 


§  303. 

1  Annals  of  Conf^ress,  1815-1816, 
pp.  1018-1023,  see  p.  1019. 

§304. 

1  Annual  Register,  1834,  Public 
Documents,  p.  352,  and  cited  by 
Mr.  Tucker  in  his  Report  on  Treaty 
with  Hawaiian  Islands,  referred  to 
in  §  307,  p.  439,  post.  Mr.  Tucker 
states  that  the  propositions  as- 
serted by  President  Jackson  were 
(page  IG  of  the  Report):  "  1.  That 
the  treaty  involved  commercial  reg- 
ulations and  rates  of  duties,  which 
had  to  be  submitted  to  Congress 


to  be  carried  into  full  execution, 
2.  That  France,  having  by  the 
treaty  (1831)  recognized  a  prece- 
dent obligation  for  depredations 
on  our  commerce,  tliongh  her  leg- 
islative department  refused  to  com- 
ply with  its  provisions,  should  be 
forced  to  comply  by  acts  of  retalia- 
tion." In  commenting  on  these 
propositions  Mr.  Tucker  says: 
"This  is  assumed  to  be  a  conces- 
sion by  the  President  in  respect  to 
the  effect  of  the  treaty  on  the  na- 
tional faith  of  France,  without  the 
concurrence  of  her  legislative  de- 

437 


§  305  TREATY-MAKING  POWER  OP  THE  U.  S.  [CH.  X. 


In  1S44,  Mr.  liufus  Choate  submitted  a  report  from  the 
Committee  on  Foreign  Relations  to  the  Senate,^  and  which 
Mr.  Tucker  quotes  in  the  report  of  1837,  which  will  be  re- 
ferred to  later  at  greater  length,^  in  which  it  was  declared 
that  the  legislature  is  the  department  of  Government  by  which 
commerce  should  be  regulated,  and  that  notwithstanding  the 
provisions  in  the  Constitution  as  to  the  treat^'-making  power, 
the  legislative  will  is  paramount  to  that  of  the  Executive  in 
regard  to  all  matters  relating  to  commerce  and  revenue. 

§  305.  Qiiestiou  agaiu  raised  regarding  Alaska  purchase 
ill  1867. — Frobably  the  occasion  ujjon  which  this  question 
was  most  extensively  debated  in  Congress,^  and  with  more 
definite  results,  was  after  the  treaty  with  Russia  of  1867,  ced- 
ing Alaska  to  the  United  States,  had  been  ratilied  by  the 
Senate,  and  the  question  of  appropriating  $7,200,000  to  make 
the  stipulated  payment  therefor  was  before  the  House  of  Rep- 
resentatives. 


partmeut,  that  a  like  constructinn 
should  prevail  as  to  our  Constitu- 
tion. It  is  obvious  that  had  the  ob- 
ligation of  France  been  created  by 
the  treaty,  instead  of  being  only 
recognized  as  a  pre-existing  obliga- 
tion, the  conclusion  would  have 
been  just.  But  President  Jack- 
son insisted  that  it  had  pre-existed 
for  a  long  time,  and  had  been  too 
long  disregarded,  and  that  the  re- 
fusal of  the  French  Chambers  to 
carry  out  the  pre-existing  obliga- 
tion, so  recognized  by  the  treaty, 
authorized  the  United  States  to 
enforce  the  prior  claim,  and  not  to 
punish  the  violation  of  the  treaty. 
And  the  President  further  insisted 
that  Congress  had  carried  out  the 
treaty  of  1831  by  enacting  com- 
mercial and  duty  regulations  fa- 
vorable to  France,  and  which  she 
was  receiving;,  and  yet  refused 
compliance  with  her  just  duty  to 
our  people  (see  4  U.  S.  Stat,  at 
Large,  pp.  574-576)." 

See  also  Richardson's  Messages 
of  the  Presidents,  vol.  Ill,  p.  97; 

438 


see  p.  101-3,  Andrew  Jackson's 
Sixth  Annual  Message,  December, 
1834.  For  French  Treaty  of  1831, 
see  U.  S.  Treaties  and  Conventions, 
edition,  1889,  p.  345;  8  U.  S.  Stat. 
L.  p.  430  (French  and  English  text). 

2  The  report  of  this  committee 
will  be  found  according  to  Mr. 
Tucker  in  Senate  Journal,  28th 
Congress,  1st  Session,  1843-1844, 
pp.  445,  et  seq.;  a  long  quotation 
therefrom  will  be  found  in  Mr. 
Tucker's  Report  referred  to  in 
§  307,  p.  439,  iwst. 

3  See  §  307,  p.  439,  })ost. 
§  305. 

1  Convention  for  the  Cession  of 
Russian  Possessions  in  North 
America  to  the  United  States  (Se- 
ward-Stoeckl)  concluded  March 
30,  1867;  ratified  by  the  Senate 
April  9,  1867;  ratifications  ex- 
clianged  and  proclaimed  June  20, 
1867;  U.  S.  Treaties  and  Conven- 
tions, ed.  1889,  p.  937;  U.  S.  Trea- 
ties in  Force  1899,  p.  537;  15  U.  S. 
Stat,  at  L.,  p.  539  (French  &  English 
text). 


CH.  X.]      TBEATIES   AND   CONGRESSIOKAL  ACTION.  §  307 

A  faction  of  the  House,  decidedly  in  the  minority,  but 
sufficiently  strong  to  make  itself  heard,  appears  to  have  taken 
great  umbrage  at  the  action  of  the  Senate,  in  ratifying  a 
treaty  by  which  the  United  States  acquired  territory,  and 
for  which  a  specified  payment  was  to  be  made,  without  first 
obtaining  the  consent  of  the  House  of  Representatives,  or 
some  expression  of  approval  from  that  body ;  every  effort 
was  made  to  defeat  the  act  appropriating  the  money  for  the 
payment  until  the  Senate  would  first  recognize  the  right  of 
the  House  of  Representatives  to  participate  in  the  treaty- 
making  power.  Many  of  the  Representatives  who  were  in 
favor  of  the  acquisition  of  Alaska  opposed  the  appropriation 
because  they  desired  to  have  the  power  of  the  House  in  re- 
gard to  treaties  recognized. 

§  306.  Position  of  House  on  Alaska  purchase  ;  the  Senate 
makes  concessions. — A  concise  history  of  this  matter  ap- 
pears in  Wharton's  International  Law,  where  the  details  can 
be  found  at  length.^  The  record  shows  that  the  House 
asserted  its  position  to  some  advantage  at  this  time,  as  the 
Act  of  Congress^  which  was  finally  passed  contained  a  con- 
cession by  which  the  Senate  admitted  that  under  some  cir- 
cumstances treaty  stipulations  "  cannot  be  carried  into  full 
force  and  effect  except  by  legislation  to  which  the  consent 
of  both  houses  of  Congress  is  necessary." 

§  307.  Question  raised  in  1887  on  Hawaiian  reciprocity 
treaty  ;  Mr.  Tucker's  report. — In  1887  the  question  was  be- 
fore the  House  of  Representatives  on  a  resolution  directing 
the  Judiciary  Committee  to  inquire  into  the  facts  relating  to 
the  treaty  of  1884,'  extending  the  reciprocity  treaty  of  1875 
with  the  Hawaiian  Islands,  and  to  report  "  whether  a  treaty 


§306. 

^  Wharton's  International  Law 
Digest,  vol.  2,  §  131a,  pp.  15,  et  seq. 
See  also  Binger  Hermann's  Louisi- 
ana Purchase,  1898,  pp.  .52-.5.5. 

2  15  U.  S.  St.  at  L.,  p.  198. 

§  307. 

1  Treaty  of  Reciprocity  with  Ha- 
waiian Islands,  concluded  January 
30,  1875;  ratification  advised  by  the 
Senate  March  18,  1875;  exchanged 
and  proclaimed  June  3,  1875.     U. 


S.  Treaties  and  Conventions,  edi- 
tion 1880,  p.  546.  By  this  treaty 
certain  articles  specified  in  Article 
I,  including  "Sandwicli  Island  su- 
gar," were  admitted  free  of  duty 
into  the  United  States  and  a  num- 
ber of  articles  were  similarly  ad- 
mitted into  the  Hawaiian  Islands 
from  the  United  Stntes.  See  Neth- 
er clift  vs.  Robertson,  U.  S.  Circ.  Ct. 
S.  D.  N.  Y.  1886,  23  Blatchford, 
546,  CoxE,  J. 

439 


SOI 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  X. 


which  involves  the  rate  of  duty  to  be  imposed  on  an}^  arti- 
cle, or  the  admission  of  any  article  free  of  duty,^  can  be  valid 
and  binding  without  the  concurrence  of  the  House  of  Rep- 
resentatives, and  how  far  the  power  conferred  on  the  House 
by  the  Constitution  of  the  United  States  to  originate  meas- 
ures to  lay  and  collect  duties  can  be  controlled  by  the  treaty- 
making  power  under  said  Constitution." 

It  was  on  this  resolution  that  Mr.  Tucker  prepared  and 
submitted  the  report  which  has  already  been  alluded  to  and 
which  contains  many  interesting  points  as  to  the  history 
of  congressional  debate  on  this  subject.^  The  report  con- 
tains from  fifteen  to  twenty  thousand  words  and  is  a  lengthy 
review  of  the  history  of  treaty  stipulations  and  subsequent 
legislation,  citing  manv  congressional  precedents,  judicial 
decisions,  and  opinions  of  publicists.  The  conclusions  reached 
were  stated  in  the  report  as  follows : 

"(1)  That  the  President,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  cannot  negotiate  a  treaty  which  shall  be 
binding  on  the  United  States,  whereby  duties  on  imports 
are  to  be  regulated,  either  by  imposing  or  remitting,  increas- 
ing or  decreasing  them,  without  the  sanction  of  an  act  of 
Congress ;  and  that  the  extension  of  the  term  for  the  opera- 
tion of  the  original  treaty  or  convention  with  the  Govern- 
ment of  the  Hawaiian  Islands,  proposed  by  the  supplementary 
convention  of  December  6,  1884,  will  not  be  binding  on  the 
United  States  without  like  sanction,  which  was  provided 
for  in  the  original  treaty  and  convention,  and  was  given  by 
act  of  Congress. 

"  (2)  That  the  President  is  respectfullv  requested  to  with- 
hold final  action  upon  the  proposed  convention,  and  to  con- 
dition its  final  ratification  upon  the  sanction  of  an  act  of 


2  Treaty  of  Reciprocity  with  Ha- 
waiian Islands,  concluded  Decem- 
ber 6,  1884;  ratification  advised  by 
Senate,  with  Amendments,  Janu- 
ary 20,  1887;  proclaimed  Novem- 
ber 9,  1887.  U.  S.  Treaties  and 
Conventions,  edition  1889,  p.  1187. 
By  this  treaty  the  reciprocity  pro- 
visions were  extended  for  seven 
years,  and  there  was  granted  to  the 

440 


United  States  the  exclusive  right 
to  establish  a  coaling  station  at 
Pearl  River  Harbor. 

3  House  of  Representatives,  Re- 
port No.  4177,  49tli  Congress,  2d 
Session,  March  3,  1887.  From  Mr. 
Tucker  of  the  Committee  on  the 
Judiciary,  on  Treaty  with  the  Ha- 
waiian Islands. 


CH.  X.]       TREATIES  AND  COKGRESSIONAL  ACTION. 


308 


Congress,  in  respect  of  the  duties  upon  articles  to  be  im- 
ported from  the  Hawaiian  Islands."  * 

§  308.  Treaty  of  Paris  with  Spain,  1898  ;  what  legisla- 
tion necessary. — The  treaty  of  peace  with  Spain  was  con- 
cluded in  Paris  on  December  10, 1898 ;  it  was  ratified  by  the 
Senate  on  February  6,  1899,  and  the  ratifications  were  ex- 
changed April  11,  1899;  questions  have  already  been  raised 
as  to  how  far  that  treaty  has  become  effectual  without  legisla- 
tion ;  so  far,  however,  as  the  necessary  appropriations  were 
concerned  the  House  of  Representatives  lost  no  time  in  pass- 
ing the  bill  providing  the  $20,000,000  for  the  payment  to 
Spain  ;  ^  legislation  has  also  been  enacted  in  regard  to  the 
status  of  the  inhabitants  in  Porto  liico;^  and  the  act  in 
some  particulars  has  been  sustained  as  constitutional  by  the 
Supreme  Court  of  the  United  States;^  but  up  to  the  pres- 
ent time  there  has  been  no  lemslation  in  resrard  to  the  Phil- 
ippine  Islands,  except  to  place  the  Government  thereof  in  the 
hands  of  the  President ;  ^  an  act  has  also  been  passed  appoint- 


4  See  page  23  of  Mr.  Tucker's  Re- 
port. 
§  308. 

1  An  act  making  an  appropria- 
tion to  carry  out  the  obligations  of 
the  treaty  batween  the  United 
States  and  Spain  concluded  De- 
cember 10,  1898.  "Se  it  enacted, 
etc.  .  .  .  There  is  hereby  ap- 
propriated, out  of  any  money  in 
the  treasury  not  otherwise  appro- 
priated, the  sum  of  $20,000,000. 
Approved  March  2,  1899."  30  U.  S. 
Stat,  at  Large,  p.  993.  The  entire 
act  consists  of  only  seven  lines. 

2  An  Act  temporarily  to  provide 
revenues  and  a  civil  government 
for  Porto  Rico,  and  for  other  pur- 
poses. Approved  April  12,  1900. 
U.  S.  Stat.  1899-1900,  p.  77. 

3  See  note  6  to  this  section  on 
next  page. 

4  THE  SPOONEK  AMENDMENT. 

"All  military,  civil,  and  judicial 
powers    necessary  to  govern    the 


Philippine  Islands,  acquired  from 
Spain  by  the  treaties  concluded  at 
Paris  on  the  tenth  day  of  Decem- 
ber, 1898,  and  at  Washington  on 
the  seventh  day  of  November,  1900, 
shall,  until  otherwise  provided  by 
Congress,  be  vested  in  such  person 
or  persons  and  shall  be  exercised 
in  such  manner  as  the  President  of 
the  United  States  shall  direct,  for 
the  establishment  of  civil  govern- 
ment and  for  maintaining  and  pro- 
tecting the  inhabitants  of  said 
islands  in  the  free  enjoyment  of 
their  liberty,  property,  and  religion : 
Provided,  That  all  franchises 
granted  under  the  authority  hereof 
shall  contain  a  reservation  of  the 
right  to  alter,  amend,  or  repeal  the 
same. 

"Until  a  permanent  government 
shall  have  been  established  in  said 
archipelago  full  reports  shall  be 
made  to  Congress  cm  or  before  the 
first  day  of  each  regular  session  of 
all  legislative  acts  and  proceedings 

441 


§308 


TEEATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  X. 


ing  a  commission  to  adjust  the  claims  of  citizens  of  the  United 
States  assumed  by  the  treaty.^    The  question  whether  the 


of  the  temporary  government  insti- 
tuted under  the  provisions  hereof; 
and  full  reports  of  the  acts  and  do- 
ings of  said  government,  and  as  to 
the  cimdition  of  tlie  archipelago 
and  of  its  people,  shall  be  made  to 
the  President,  including  all  infor- 
mation which  may  be  useful  to  the 
Congress  in  providing  for  a  more 
permanent  government:  Provided, 
That  no  sale  or  lease  or  other  dis- 
position of  the  public  lands  or  the 
timber  thereon  or  the  mining  rights 
therein  shall  be  made:  And  pro- 
vided further,  That  no  franchise 
shall  be  granted  which  is  not  ap- 
proved by  the  President  of  the 
United  States,  and  is  not  in  his 
judgment  clearly  necessary  for  the 
immediate  government  of  the  is- 
lands and  indispensable  for  the 
interest  of  the  people  thereof,  and 
which  cannot,  without  great  pub- 
lic mischief,  be  postponed  tmtil 
the  establishment  of  permanent 
civil  government;  and  all  such 
franchises  shall  terminate  one  year 
after  the  establishment  of  such 
permanent  civil  government. 

"All  laws  or  part  of  laws  incon- 
sistent with  the  provisions  of  this 
Act  are  hereby  repealed.  Approved 
March  2,  1901."  The  foregoing 
was  offered  as  an  amendment  to 
the  Army  Appropriation  Bill  by 
Senator  John  C.  Spooner  of  Wis- 
consin, and  was  incorporated  as  a 
part  of  the  Act  when  passed.  It 
constitutes  the  last  sentences  of 
the  Act.  31  U.  S.  Stat.  L.,  p.  895, 
et  seq.     See  p.  910. 

°  An  Act  to  carry  into  effect  the 
stipulations  of  article  seven  of  the 
treaty  between  the  United  States 
and  Spain  concluded  on  the  tenth 
day  of  December,  1898.    Approved 

442 


March  2,  1901.  Public  Act, 
No.  115.  31  U.  S.  Stat,  at  Large, 
pp.  877-880. 

Article  VII  is  as  follows : 

"The  United  States  and  Spain 
mutually  relinquish  all  claims  for 
indemnity,  national  and  individual, 
of  every  kind,  of  either  Govern- 
ment, or  of  its  citizens  or  subjects, 
against  the  other  Government,  that 
may  have  arisen  since  the  beginning 
of  the  late  insurrection  in  Cuba 
and  prior  to  the  exchange  of  ratifi- 
cations of  the  present  treaty,  in- 
cluding all  claims  for  indemnity 
for  the  cost  of  the  war. 

"The  United  States  will  adjudi- 
cate and  settle  the  claims  of  its  citi- 
zens against  Spain  relinquished  in 
this  article."  30  U.  S.  Stat,  at 
Large  p.  1757. 

By  an  act  of  Congress,  approved 
March  2,  1901,  a  commission  of  five 
was  constituted  to  receive,  examine 
and  adjudicate  all  claims  of  citizens 
of  the  United  States  against  Spain. 
The  commission  "shall  adjudicate 
said  claims  according  to  the  merit  of 
the  several  cases,  the  principles  of 
equity  and  of  international  law." 
The  commission  shall  make  rules 
of  precedure  but  the  act  provides 
generally  for  the  form  and  manner 
of  presentation  of  claims  which 
must  be  presented  and  filed  with- 
in six  months  after  the  first  meet- 
ing of  the  commission  (April  8, 
1901).  Awards  shall  only  be  made 
for  actual  and  direct  damages 
proved;  remote  or  prospective 
damages  and  interest  are  not  to  bc- 
allowed.  Awards  are  final  but 
"  when  the  commission  is  in  doubt 
as  to  any  question  of  law  arising 
upon  the  facts  in  any  case  before 
them,  they  may  state  the  facts  and 


CH.  X.]      TREATIES  AND  CONGRESSIONAL  ACTION. 


308 


clause  ceding  the  territory  was  an  absolute  stipulation  which 
immediately  made  the  Philippine  Islands,  as  well  as  Porto 
Rico  and  Guam,  a  part  of  the  territory  of  the  United  States, 
so  that  the  laws  and  Constitution  of  the  United  States  ex- 
tended thereover,  is  at  this  time  (May,  1901)  still  pending 
before  the  Supreme  Court  of  the  United  States,  and  undoubt- 
edly the  opinions  which  will  be  rendered  in  the  cases  now 
under  consideration  by  that  court  will  definitely  settle  many 
important  points  as  to  how  far  treat}'-  stipulations  become 
o^QVdXiw&exprojpriovigore,  and  without  legislative  assistance.^ 


the  question  of  law  so  arising  and 
certify  the  same  to  the  Supreme 
Court  of  the  United  States  for  its 
decision,  and  said  Court  sliall  have 
jurisdiction  to  cousider  and  decide 
the  same."  Tlie  commission  is  to 
continue  in  force  for  two  years,  but 
the  President  has  discretionary 
power  to  extend  this  period  six 
months  at  a  time  when  in  his  judg- 
ment such  extension  is  necessary. 
A  large  number  of  claims  have  al- 
ready been  filed,  including  many 
for  destruction  of  property  in 
Cuba,  and  for  loss  of  life,  damages 
for  illegal  imprisonment;  many 
members  of  the  families  of  seamen 
and  marines  who  were  killed,  and 
some  of  those  who  were  injured, 
by  the  explosion  of  the  U.  S.  Bat- 
tleship Maine  in  Havana  Harbor 
on  February  15,  1898,  have  filed 
claims  on  the  ground  that  the  ex- 
plosion was  the  result  of  negligence 
or  actual  connivance  of  the  Spanish 
authorities  and  that  the  United 
States  has  assumed  these  as  well 
as  other  claims.  The  author  of 
this  volume  is  of  counsel  for  a  num- 
ber of  these  claimants.  At  this 
time  (Dec'r,1901)  the  United  States 
Government  has  not  filed  any  an- 
swer or  demurrer  but  has  made  a 
motion  to  dismiss  the  claims  on 
the  ground  that  the  commission 
has  no  jurisdiction  of  this  class  of 


claims.  That  motion  will  probably 
be  argued  in  October,  1901.  The 
members  of  the  Commission  are 
William  E.  Chandler,  Tresident; 
Gerritt  E.  Diekema,  James  Perry 
Wood,  William  A.  Maury  and  Wil- 
liam L.  Chambers;  William  E. 
Spear,  clerk;  William  E.  Fuller, 
assistant  attorney  general,  in  charge 
of  the  claims  on  behalf  of  the  (Jov- 
ernment  of  the  United  States.  In 
regard  to  the  status  of  claims  of  in- 
dividual citizens  of  the  United 
States  against  foreign  governments 
and  the  right  of  the  United  States 
to  release  foreign  governments  by 
treaty  therefrom,  and  the  rights  of 
the  claimants  against  the  United 
States  in  such  cases,  see  §§  442, 
et  seq.,  chap.  XV,  Vol.  II. 

s  Si  nee  the  above  was  written  opin- 
ions have  been  delivered  (May  21- 
28,  1901)  in  several  of  the  cases  re- 
fei-red  to.  They  are  discussed  at 
length  in  §§  (51a-Gl//,  pp.  117-127, 
anfe,  under  other  sections  there  re- 
ferred to  and  abstracts  of  some  of 
the  ojnnioiis  appear  in  the  Insular 
Casks  Appendix  at  the  end  of  this 
volume.  The  right  of  Congress  to 
impose  duties  on  goods  brought 
from  ports  in  territory  acquired  by 
the  United  States  by  treaties  of 
cession  from  foreign  powers  to 
other  ports  of  the  United  States 
was  sustained  in  the  case  of  Downe.s 

443 


309 


TREATY-MAKING  POWER  OF  THE  U.  S. 


[CH.  X. 


§  300.  Opinions  of  publicists  on  this  subject. — Some 
further  opinions  on  this  subject,  as  they  have  been  expressed 
by  Kent/  Duer,  Calhoun,  AN'^ebster,  Wheaton  and  others,  may 


vs.  Bldwell,  182  U.S. 244.  See§  61c, 
p.  122,  ante,  or  Insulak  Oases 
Appendix  for  details.  The  Spooner 
Amend ment  and  the  right  to  vest 
the  President  and  his  appointees 
with  all  military,  civil  and  judicial 
power  necessarj"^  to  govern  terri- 
tory belonojug  to  the  United  States 
were  not  involved  in  any  of  the 
cases  decided. 

§309. 

1  Chancellor  Kent  in  Lectui-e 
XIII,  p.  286,  says: 

"  The  question  whether  a  treaty, 
constitutionally  made,  was  obliga- 
tory upon  Congi-ess,  equally  as  any 
other  national  engagement  would 
be,  if  fairly  made  by  the  competent 
authority,  or  whether  Congress 
had  any  discretionary  power  to 
carry  into  effect  a  treaty  requiring 
the  appropriation  of  money,  or 
other  act  to  be  done  on  their  part, 
or  to  refuse  it  their  sanction,  was 
greatly  discussed  in  Congress  in 
the  year  1796,  and  again  in  1816. 
The  House  of  Representatives,  at 
the  former  period,  declared  by  reso- 
lution, that  when  a  treaty  depended 
for  the  execution  of  any  of  its  stip- 
ulations on  an  act  of  Congress,  it 
was  the  right  and  duty  of  the  House 
to  deliberate  on  the  expediency  or 
inexpediency  of  carrying  such 
treaty  into  effect.  It  cannot  be 
mentioned  at  this  day,  without 
equal  regret  and  astonishment,  that 
such  a  resolution  passed  the  House 
of  Representatives  on  the  7th  of 
April,  1796.  But  it  was  a  naked 
abstract  claim  of  right,  never  acted 
upon;  and  Congress  shortly  after- 

444 


wards  passed  a  law  to  carry  into 
effect  the  very  treaty  with  Great 
Britain  which  gave  rise  to  that  reso- 
lution. President  AVashington,  in 
his  message  to  the  House  of  Rep- 
resentatives of  the  30th  of  March, 
1796,  explicitly  denied  tlie  exist- 
ence of  any  such  power  in  Con- 
gress; and  he  insisted  that  every 
treaty  duly  made  by  the  President 
and  Senate,  and  promulgated, 
thenceforward  became  the  law  of 
the  land. 

"  If  a  treaty  be  the  law  of  the  land, 
it  is  as  much  obligatory  upon  Con- 
gress as  upon  any  other  branch  of 
the  government,  or  upon  the  people 
at  large,  so  long  as  it  continues  in 
force  and  unrepealed.  The  House 
of  Representatives  are  not  above 
the  law,  and  they  have  no  dispens- 
ing power.  They  have  a  right  to 
make  and  repeal  laws,  provided 
the  Senate  and  President  concur; 
but  without  such  concurrence,  a 
law  in  the  shape  of  a  treaty  is  as 
binding  upon  them  as  if  it  were  in 
the  shape  of  an  act  of  Congress,  or 
of  an  article  of  the  Constitution,  or 
of  a  contract  made  by  authority  of 
law.  The  argument  in  favor  of 
the  binding  and  conclusive  efficacy 
of  every  treaty  made  by  the  Presi- 
dent and  Senate  is  so  clear  and  pal- 
pable, that  it  has  probably  carried 
very  general  conviction  throughout 
the  community;  and  this  may  now 
be  considered  as  the  decided  sense 
of  public  opinion.  This  was  the 
sense  of  the  House  of  Representa- 
tives, in  1816,  and  the  resolution  of 
1796  would  not  now  be  repeated." 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  309 

be  found  in  Wharton's  Digest  following  the  Alaska^  case,  and 
in  Mr.  Tucker's  report  of  1887.=^ 


Kent's  Commentaries,  Lect.  XIII, 
pp.  286-287. 

Chancellor  Kent  then  quoted  the 
following  from  Story's  Commen- 
taries: "(a)  The  treaty-making 
power  is  necessarily  and  obviously 
subordinate  to    the    fundamental 


laws  and  constitution  of  the  state, 
and  it  cannot  change  the  form  of 
the  government,  or  annihilate  its 
constitutional  powers."  Story's 
Comm.  on  the  Constitution,  ii, 
sec.  Io02. 
3  See  §  .307,  and  note  3,  p.  440,  ante. 


2  Extracts  from  Wharton's  Digest. 
(§131a,  pp.  23-27.) 

Kent. 
"  Treaties  of  peace,  when  made  by  the  competent  power,  are  obliga- 
tory upon  the  whole  nation.  If  the  treaty  requires  the  payment  of  money 
to  carry  it  iuto  effect,  and  the  money  cannot  be  raised  but  by  an  act  of 
the  legislature,  the  treaty  is  morally  obligatory  upon  the  legislature  to 
pass  the  law,  and  to  refuse  it  would  be  a  breach  of  the  public  faith.  The 
department  of  the  Government  that  is  intrusted  by  the  Constitution 
with  the  treaty-making  power  is  competent  to  bind  the  national  faith 
in  its  discretion,  for  the  power  to  make  treaties  of  peace  must  be  co- 
extensive with  all  the  exigencies  of  the  nation,  and  necessarily  involves 
in  it  that  portion  of  the  national  sovereignty  which  has  the  exclusive  di- 
rection of  diplomatic  negotiations  and  contracts  with  foreign  powers. 
All  treaties  made  by  that  power  become  of  absolute  efficacy,  because 
they  are  the  supreme  law  of  the  land.  There  can  be  no  doubt  that  the 
power  competent  to  bind  the  nation  by  treaty  may  alienate  the  public 
domain  and  property  by  treaty.  If  a  nation  has  conferred  upon  its  ex- 
ecutive department,  without  reserve,  the  right  of  treating  and  contract- 
ing with  other  states,  it  is  considered  as  having  invested  it  with  all  the 
power  necessary  to  make  a  valid  treaty.  That  department  is  the  organ 
of  the  nation,  and  the  alienations  by  it  are  valid,  because  they  are  done 
by  the  reputed  will  of  the  nation.  The  fundamental  laws  of  a  State  may 
withhold  from  the  executive  department  the  power  of  transferring  what 
belongs  to  the  States,  but  if  there  be  no  express  provision  of  that  kind 
the  inference  is  that  it  has  confided  to  the  department  charged  with  tho 
power  of  making  treaties  a  discretion  commensurate  with  all  the  great 
interests  and  wants  and  necessities  of  the  nation.     1  Kent's  Com.  162." 

DUER. 

"  If  a  treaty  be  the  law  of  the  land,  it  is  as  much  obligatory  upon  Con- 
gress as  upon  any  other  branch  of  the  Government,  or  upon  the  people 
at  large,  so  hmg  as  it  continues  in  force  and  unrepealed.  The  House  of 
Representatives  are  not  above  the  law,  and  they  have  no  dispensing 
power.  They  have  a  right  to  make  and  to  repeal  laws,  provided  the  Sen- 
ate and  President  concur,  but  without  such  concurrence  a  law  in  the 
shape  of  a  treaty  is  as  binding  upon  them  as  if  it  were  in  the  shape  of  an 
act  of  Congress,  or  of  an  article  of  the  Constitution,  or  of  a  contract 

445 


§  301)  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  X. 

At  the  end  of  the  notes  in  Wharton's  Digest  on  this  sub- 
ject, the  following  conclusion  is  reached  and  stated : 

made  by  authority  of  law.  The  arffuraent  in  favor  of  the  binding  and 
citnclusive  efficacy  of  every  treaty  made  by  the  President  and  Senate  is 
so  clear  and  palpable,  that  it  has  probably  carried  very  general  conviction 
throughout  the  community;  and  this  may  now  be  considered  as  the  de- 
cided seuse  of  public  opinion. 

"  If  a  treaty  require  the  payment  of  money  to  carry  it  into  effect,  and 
the  money  can  only  be  raised  or  appropriated  by  an  act  of  the  legisla- 
ture, the  existence  of  the  treaty  renders  it  morally  obligatory  on  Con- 
gress to  pass  the  re(]uisite  law,  and  its  refusal  to  do  so  would  amount 
to  a  breach  of  the  public  faith,  and  afford  just  cause  of  war.  That  de- 
partment of  the  (lovernmeiit  which  is  intrusted  by  the  Constitution  with 
the  power  of  making  treaties  is  competent  to  bind  the  national  faith  at 
its  discretion;  for  the  powerto  make  treaties  must  be  co-extensive  with 
the  national  exigencies,  and  necessarily  involves  in  it  every  portion  of 
the  national  sovereignty,  of  which  the  co-operation  maybe  necessary  to 
give  effect  to  negotiaticms  and  contracts  with  foreign  nations.  If  a  na- 
tion ciinfer  on  its  executive  department  without  reserve  the  right  of 
treating  and  contracting  with  other  sovereignties,  it  is  considered  as 
having  invested  it  with  all  the  power  necessary  to  make  a  valid  contract, 
and  that  it  is  the  organ  in  making  its  contracts;  and  such  alienations 
are  valid,  becanse  they  are  made  by  the  reputed  assent  of  the  nation. 
Duer's  Outlines  of  Constitutional  Jurisprudence  of  the  United  States, 
138." 

CALHOUN. 

"  The  treaty-making  power  is  limited  by  all  the  provisions  of  the  Con- 
stitution which  inhibit  certain  acts  from  being  done  by  the  Government. 
It  is  also  limited  by  such  provisions  of  the  Constitution  as  direct  certain 
acts  to  be  done  in  a  particular  way,  and  which  prohibit  the  contrary,  of 
which  a  sti  iking  example  is  to  be  found  in  that  which  declares  that  no 
money  shall  be  drawn  from  the  Treasury  but  in  consequence  of  appro- 
priations to  be  made  by  law.  This  not  only  imposes  an  important  re- 
striction on  the  power,  but  gives  to  Congress  as  the  law-making  power, 
and  to  the  House  of  Representatives,  as  a  portion  of  Congress,  the 
right  to  withhold  appropriations,  and  thereby  an  important  control  over 
the  treaty-making  power,  whenever  money  is  required  to  carry  a  treaty 
into  effect,  which  is  usually  the  case,  especially  in  reference  to  those  of 
the  most  importance.  There  still  remains  another  and  more  important 
limitation,  but  of  a  more  general  and  indefinite  character.  It  can  enter 
into  no  stipulation  calculated  to  change  the  character  of  the  Government, 
or  to  do  that  which  can  only  be  done  by  the  constitution-making  power, 
or  which  is  inconsistent  with  the  nature  and  structure  of  the  Govern- 
ment.    Calhoun's  Discourse  on  Government,  1  Works,  201." 

WHEATON. 

"  Mr.  Wheaton's  letter  to  Mr.  Butler,  Attorney  General,  on  the  refusal 
of  the  French  Chamber  to  appropriate  the  sum  necessary  for  the  pay- 

446 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  309 

"  The  question,  therefore,  which  was  agitated  in  1796, 
whether  Congress  can,  under  the  Constitution,  refuse,  in  its 

ment  of  the  fund  agreed  on  by  the  French  indemnity  treaty,  has  been 
already  cited.  {Supra,  §9;  infra,  §318.  See  also  Halleck's  lut.  Law 
(Baker's  ed.)  232,  citing  Wheaton's  Life  of  Pinkney,  517-'49;  1  Kent's 
Com.,  285;  President's  Mess.  Dec.  1834;  Ann.  Reg.,  1834,  361.)  This  is 
another  form  of  stating  the  position  elsewhere  mentioned,  that  a  treaty 
may  bind  internationally  when  it  would  not  bind  municipally.  ( Supro,, 
§  9.)  The  United  States,  for  instance,  may  by  statute  impose  on  its 
own  citizens  less  stringent  rules  of  neutrality  than  it  imposes  on  itself 
by  treaty;  but  such  municipal  laxity  on  its  part  will  not  relieve  it  from 
its  obligations  by  treaty  or  by  international  law.  (See  infra,  §  402, 
Whartou. )  A  Government  also  is  liable  for  violations  of  international 
duty  by  its  judiciary.        {Infra,  §  329a,  Wharton.) 

"It  is  not  inconsistent  with  this  position  that  the  United  States  is 
not  liable  for  a  treaty  which  the  Senate  refuses  to  ratify,  since  no  Gov- 
ernment is  internationally  liable  on  a  treaty  not  agreed  to  by  the  treaty- 
making  power.     (See  Wharton,  §§  9  and  318.)" 

A  German's  Vievt  of  the  Question. 
"  That  a  treaty  cannot  invade  the  constitutional  prerogatives  of  the 
legislature  is  thus  illustrated  by  a  German  author,  who  has  given  to  the 
subject  a  degree  of  elaborate  and  extended  exposition  which  it  has  re- 
ceived from  no  writer  in  our  own  tongue.  Congress  has  under  the 
Constitution  the  right  to  lay  taxes  and  imposts,  as  well  as  to  regulate 
foreign  trade,  but  the  President  and  Senate,  if  the  '  treaty-making  power ' 
be  regarded  as  absolute,  would  be  able  to  evade  this  limitation  by  adopt- 
ing treaties  which  would  compel  Congress  to  destroy  its  whole  tariff 
system.  According  to  the  Constitution,  Congress  has  the  right  to  deter- 
mine questions  of  naturalization,  of  patents,  and  of  copyright.  Yet, 
according  to  the  view  here  contested,  the  President  and  Senate,  by  a 
treaty,  could  on  these  important  questions  utterly  destroy  the  legislative 
capacity  of  the  House  of  Representatives.  The  Constitution  gives  Con- 
gress the  control  of  the  Army.  Participation  in  this  control  would  be 
snatched  from  the  House  of  Kcpresentatives  by  a  treaty  with  a  foreign 
power  by  which  the  United  States  would  bind  itself  to  keep  in  the  field 
an  army  of  a  particular  size.  The  Constitution  gives  Cimgress  the  right 
of  declaring  war;  this  right  would  be  illusory  if  the  President  and  Sen- 
ate could  by  a  treaty  launch  the  country  into  a  foreign  war.  The 
power  of  borrowing  money  on  the  credit  of  the  United  States  resides 
in  Congress;  this  power  would  cease  to  exist  if  the  President  and  Sen- 
ate could  by  treaty  bind  the  country  to  the  borrowing  of  foreign  funds. 
By  the  Constitution  '  no  money  shall  be  drawn  from  the  Treasury,  but 
in  consequence  of  appropriations  made  by  law;'  but  this  limitaUon 
would  cease  to  exist  if  by  a  treaty  the  United  States  could  be  bound 
to  pay  money  to  a  foreign  power.  .  .  .  Congress  would  cease  to 
be  the  law-making  power  as  is  prescribed  by  the  Constitution;  the 
law-making  power  would  be  the  President  and  the  Senate.     Such  a  coa- 

447 


§  311  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  X. 

legislative  capacity,  to  pass  acts  for  the  execution  of  treaties 
duly  ratified,  remains  still  open.  Yet  two  positions  may  be 
regarded  as  acce[)ted  in  the  practical  working  of  our  Govern- 
ment. One  is  that  without  a  congressional  vote  there  can 
be  no  a))propriation  of  money  which  a  treaty  requires  to  be 
paid.  Tlie  other  is  that  it  should  require  a  very  strong  case 
to  justify  Congress  in  refusing  to  pass  an  appropriation  which 
is  called  for  by  a  treaty  duly  ratified."'* 

§  310.  Supreme  Court  decisions  ou  this  subject. — The 
decisions  of  the  Supreme  Court  as  to  necessity  of  legislation 
to  carry  into  effect  treaty  stipulations  which  in  any  way 
change  existing  tariff  laws,  or  other  statutory  provisions  of 
the  United  States,  will  be  referred  to  in  a  subsequent  chap- 
ter, but  the  doctrine  laid  down  by  Mr.  Justice  Curtis  in  the 
case  of  Tatjlo}'  vs.  Morton,  which  will  be  hereafter  quoted  at 
length,  to  the  effect  that  such  legislation  is  necessary,  has 
been  accepted  as  the  law  in  regard  to  that  class  of  treaty 
stipulations,  and  followed  in  judicial  and  congressional  ac- 
tion.^ 

§311.  General  conclusions:  power  of  Congress  to  frus- 
trate and  abrogate  treaties. — It  must  be  recognized,  there- 
fore, that,  while  the  treaty-making  power  of  the  United 
States  is  undoubtedly  vested  in  the  Executive  subject  to  rat- 
ification by  two-thirds  of  the  Senate,  it  is  still  within  the 
power  of  Congress— that  is,  a  majority  of  both  Houses  of 
that  body— to  control  the  ultimate  effect  of  all  treaty  stipu- 
lations which  in  any  way  conflict  with  any  existing  laws  of 
the  United  States,  or  which  require  legislation  to  make  them 
effectual,  or  which  require  the  appropriation  of  money  to 

dition  would  become  the  more  dangerous  from  the  fact  that  treaties  so 
adopted,  being  ou  this  pariiciiLar  hypothesis  superior  to  legisLvtion, 
would  continue  in  force  until  superseded  by  other  treaties.  Not  only, 
therefore,  would  a  Congress  consisting  of  two  houses  be  made  to  give 
way  to  an  oligarchy  of  President  and  Senate,  but  the  decrees  of  this  oli- 
garchy, when  once  made,  could  only  be  changed  by  concurrence  of  Presi- 
dent and  of  Senatorial  majority  of  two  thirds.  Ueber  den  Abschluss 
von  Staatsvertriigen,  von  Dr.  Ernest  Meier,  Professor  der  Rechte  an  der 
Universitiit  Halle,  Leipzig,  1874.'" 


*  Wiiarton's    International    Law 
Digest,  vol.  2,  §  131a,  pp.  23-27. 
§  310. 
1  Tai/lor  vs.  Morton,  U.  S.  Cir.  Ct. 

4-18 


Mass.  1855;  2  Curtis,  454;  Curtis, 
Associate  Justice  of  Supreme 
Court,  sitting  as  Circuit  Judge; 
affirmedU.  S.  Sup.  Ct.  1862 ;  2Black. 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  313 


fulfil  them.  This  can  be  done  either  by  enacting  legislation 
contrary  to  the  terms  and  spirit  of  the  provisions  oi"  the 
treaty,  or  by  refusing  to  enact  the  legislation  necessary  to 
carry  them  out. 

Furthermore,  Congress,  by  act  or  by  resolution,  can  abro- 
gate a  treaty,  and  thereby  render  futile  the  treaty -making 
power  as  exercised  by  the  constitutional  authorities.^ 

§  312.  Moral  and  ethical  questions  arising. — Upon  this 
point  many  moral,  ethical  and  speculative  questions  might 
be  raised ;  it  is  fortunate,  however,  that  the  mere  existence 
of  power  does  not  mean  that  such  power  has  been  or  will  be 
misused ;  undoubtedl}'-,  although  opportunities  may  exist 
for  raising  the  questions  as  to  the  effect  of  this  power  to 
annul,  or  to  render  treat}'  stipulations  void.  Congress  will 
continue  to  adhere  to  its  established  custom  of  enacting  ail 
proper  legislation  necessary  to  carry  out  treaties  made  by 
the  government,  when  they  are  in  the  nature  of  contracts 
and  legislation  is  required  to  make  them  opei'ative,  and  to 
carry  out  the  obligations  assumed  by  the  government  to  other 
nations,  the  failure  to  comply  with  which  would  involve  na- 
tional repudiation  and  bad  faith.^ 

§  313.  Alexander  Hamilton's  views  in  Federalist  not 
followed  by  the  Supreme  Court. — In  this  respect  the  con- 
struction of  the  treaty-making  power  by  the  Courts  and 
Congress,  and  the  relative  effect  of  treaties  and  legislation 
has  been  different  from  that  which  some  of  the  framers  of 
the  Constitution  placed  upon  it.  Alexander  Hamilton  con- 
sidered that  treaties  of  the  United  States  made  with  foreign 
powers  would  not  only  have  the  force  of  law,  but  would  de- 
rive that  force  from  the  obligations  of  good  faith,  and  that 
neither  Congress  nor  the  Executive  could  violate  provisions 
of  treaties  by  enacting  laws  in  conflict  therewith.^ 


481,  Cliffokd,  J.  And  sec  §§  ?,(u 
et  seq.,  Vul.  II,  for  extracts  from 
opinion  in  the  Circuit  Couit  which 
was  followed  by  the  Supreme  Court. 

§311. 

iSee  §365,  Vol.  II,  and  notes 
thereunder. 

§312. 

1  See  §  298,  p.  413,  ante. 

29 


§313. 

^  "  .NO.  LXXV  OF  THE  FKDERATJST. 

"With  I'egard  to  the  intermix- 
ture of  powers,  I  shall  rely  up- 
on the  explanations  already  given 
in  other  places,  of  the  true  sense 
of  the  rule  upon  which  that  objec- 
tion is  founded;  and  shall  take  it 
for  granted,   as  an  inference  from 

449 


§313 


TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  X. 


AVe  shall  see,  however,  that  the  Supreme  Court  has  taken 
a  different  view,  and,  although  the  Executive,  with  the  rati- 
lication  of  two-thirds  of  the  Senate,  can  make  a  treaty — 
that  is  to  say,  a  contract — with  a  foreign  nation,  such  con- 
tract can  be  violated  by  an  act  of  Congress  passed  after  the 
treaty  has  been  ratified,  and  that  if  the  treaty  provides  for 
the  modification  of  existing  legislation,  as  for  instance,  a  dif- 
ferent tariff  rate,  the  treaty  will  not  go  into  effect  in  that 
respect  unless  Congress  enacts  new  legislation,  or  modifies  ex- 
isting legislation,  in  accordance  with  the  treaty  provisions.'^ 


them,  that  the  union  of  the  Execu- 
tive with  the  Senate,  in  the  article 
of  treaties,  is  no  infringement  of 
that  rule.  I  venture  to  add,  that 
the  particular  nature  of  the  power 
of  making  treaties  indicates  a  pe- 
culiar propriety  in  that  union. 
Though  several  writers  on  the  sub- 
ject of  government  place  that 
power  in  the  class  of  executive  au- 
thorities, yet  this  is  evidently  an 
arbitrary  disposition;  for  if  we  at- 
tend carefully  to  its  operation,  it 
will  be  found  to  partake  more  of 
the  legislative  than  of  the  execu- 
tive character,  though  it  does  not 
seem  strictly  to  fall  within  the 
definition  of  either  of  them.  The 
essence  of  the  legislative  authority 
is  to  enact  laws,  or  in  other  words, 
to  prescribe  rules  for  the  regula- 
tion of  the  society;  while  the 
execution  of  the  laws,  and  the  em- 
ployment of  the  common  strength, 
either  for  this  purpose  or  for  the 
common  defence,  seem  to  com- 
prise all  the  functions  of  the  execu- 
tive magistrate.  The  power  of 
making  treaties  is,  plainly,  neither 
the  one  nor  the  other.  It  relates 
neither  to  the  execution  of  the  sub- 
sisting laws,  nor  to  the  enaction  of 
new  ones;  and  still  less  to  an  exer- 
tion of  the  common  strength. 
Its  objects  are  contracts  with 
foreign    nations,   which  have    the 

450 


force  of  law,  but  derive  it  from  the 
obligations  of  good  faith.  They 
are  not  rules  prescribed  by  the 
sovereign  to  the  subject,  but 
agreements  between  sovereign  and 
sovereign.  The  power  in  question 
seems  therefore  to  form  a  distinct 
department,  and  to  belong,  prop- 
erly, neither  to  the  legislative  nor 
to  the  executive.  The  qualities 
elsewhere  detailed  as  indispensable 
in  the  management  of  foreign  ne- 
gotiations, point  out  the  Execu- 
tive as  the  most  fit  agent  in  those 
transactions;  while  the  vast  im- 
portance of  the  trust,  and  the  oper- 
ation of  treaties  as  laws,  plead 
strongly  for  the  participation  of 
the  whole  or  a  portion  of  the  legis- 
lative body  iu  the  ofiice  of  making 
them."  The  author  then  proceeds 
to  demonstrate  the  superior  fitness 
of  the  Senate  for  this  participation 
of  the  two-thirds  majority — mak- 
ing a  sufficiently  strong  check  upon 
it  to  protect  the  interests  of  the 
people. 

For  comment  on  this  utterance  of 
The  Federalist,  see  Tucker  on  the 
Constitution,  vol.  2,  p.  729. 

^  See  §§  314,  et  seq.,  post,  of  this 
chapter,  and  see  also  chap.  XII, 
post,  which  is  devoted  entirely  to 
the  relative  effects  of  treaty  stipu- 
lations and  Federal  statutes. 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  315 

§  814.  Position  of  Supreme  Court  as  to  treaty  violations ; 
burden  tlirown  on  Congress. — This  apparently  puts  the  Su- 
preme Court  in  the  position  of  declaring  that  the  United 
States  has  a  right  to  violate  its  contracts,  and  is  not  bound 
in  the  same  manner  as  individuals  are.  The  records  of  that 
Court,  however,  show  that  no  decision  of  the  Supreme  Court 
has  ever  relieved  the  United  States  from  its  liability  to  another 
nation  for  violating  treaty  stipulations ;  that  Court,  speaking 
through  its  most  eminent  members,  has  often  said,  and  un- 
doubtedly will  continue  to  say,  that  treaties  or  contracts 
made  with  foreign  nations  and  which  require  legislation  to 
make  them  effective,  cannot  become  effective  without  legis- 
lation, and  also  that  they  can  be  violated,  by  legislation  in- 
consistent therewith ;  it  has  always  sounded  to  Congress  the 
warning  note  that,  although  the  courts  cannot  enforce  treaty 
stipulations,  except  so  far  as  they  are  self-operative  and  re- 
quire no  legislative  assistance.  Congress  must  beware  of  the 
reclamations,  which  can,  and  may,  be  made  by  foreign  na- 
tions upon  this  Government  for  its  failure  to  fulfil  treaty 
stipulations,  or  for  its  violations  thereof,  as  those  stipulations 
not  only  have  all  the  attributes  of  contracts  between  individ- 
uals, but  are  also  clothed  with  the  sanctity  of  national  good 
faith  which  never  should  be  violated,  and  which  never  can 
be  violated  without  far-reaching  and  unfortunate  results. 

§  315.  Difference  between  municipal  and  international 
law  in  this  respect. — In  discussing  this  proposition  we  must 
remember  that  two  classes  of  law  are  involved  and  that  the 
decisions  of  the  Supreme  Court  in  regard  to  the  apparent 
violation  of  treaty  stipulations  have,  as  a  general  rule,  been 
made  in  cases  involving  the  interests  of  citizens  of  the 
United  States,  or  which  have  related  to  the  conduct  of  offi- 
cers of  the  United  States  within  its  own  territory,  and 
which  have  not  related  to  claims,  arising  directly  under  the 
treaty,  and  made  by  one  of  the  national  contracting  par- 
ties against  the  other;  that  is,  under  the  municipal  law  of 
the  United  States,  as  administered  by  our  Federal  and  State 
Courts,  the  statutes  of  the  United  States  must  be  followed. 
If,  therefore,  Congress  does  not  choose  to  carry  out  a  treaty, 
or  if  it  prefers  to  violate  one,  citizens  of  the  United  States, 
or  even  subjects  of  foreign  powers,  seeking  relief  in  our 

451 


§316 


TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  X. 


courts,  may  not,  in  that  manner,  be  able  to  obtain  redress 
for  griev^ances  arising  from  the  failure  of  the  Government 
of  the  United  States  to  comply  with  treaty  stipulations. 
The  courts  are  bound  by  the  laws  enacted  by  Congress,  and 
cannot  declare  them  either  unconstitutional  or  inoperative 
because  they  violate  national  contracts  or  national  good 
faith  and  honor.  If,  through  congressional  failure,  or  neg- 
lect, to  carry  out  treaty  stipulations  for  the  benefit  of  citi- 
zens of  a  foreign  country,  citizens  of  the  United  States  suffer 
damage,  they  have  no  redress  whatever,  as  the  contract  was 
not  made  for  their  beneht,  and  they  cannot  complain  if  Con- 
gress by  its  negative  or  positive  action  renders  those  stipu- 
lations valueless;  if  citizens  of  the  foreign  country  suffer 
damage  by  such  legislation,  their  remedy  is  not  through  the 
courts,  which  are  necessarily  bound  by  the  statute  law,  but 
they  must  apply  for  redress  through  their  own  government, 
"with  whom  the  treaty  is  made,  and  their  claims  can  then  be 
settled  according  to  the  rules  of  international  law,  either  di- 
plomatically through  the  various  State  and  Foreign  Offices, 
by  international  arbitration,  or  if  that,  unfortunatel}^,  shall 
fail,  by  the  Court  of  last  resort  for  nations— war.^ 

§  31'1.  Treaty  with  Denmark  considered  in  this  re- 
spect ;  tariff  legislation. — To  take  a  concrete  example ;  the 
treaties  with  Denmark  provided  that  there  should  be  no 
higher  duties  charged  on  goods  brought  from  Denmark  or 
Danish  possessions,  than  were  charged  on  similar  goods 
brought  from  other  countries.^     After  the  Hawaiian  treaty 


§  315. 

iFor  international  claims  aris- 
ing from  legislation  which  violates 
treaty  stipulation,  see  Wharton's 
Digest  of  International  Law,  vol.  2, 
§  138,  p.  65,  and  see  p.  70. 

§  316. 

^Treaty  of  Friendship,  Commerce 
and  Navigation;  concluded  April 
26,  1826,  ratification  exchanged  at 
Copenhagen  August  10,  1826,  U.  S. 
Treaties  and  Conventions,  edition, 
1887,  p.  231,  U.  S.  Treaties  in  Force, 
edition,  1899,  p.  152. 

452 


This  treaty  was  abrogated  in 
1856,  but  was  revived  by  the  con- 
vention exempting  American  ves' 
sels  fiom  the  Sound  and  Belts  dues 
concluded  April  11,  1857;  ratilica- 
tions  exchanged  at  Washington 
January  12,  1858,  which  contained 
the  following: 

ARTICLE  IV. 

No  higher  or  other  duties  shall 
be  imposed  on  the  importation  into 
the  United  States  of  any  article, 
the  produce  or  manufacture  of  the 


CH.  X.]       TREATIES  AISTD  CONGRESSIONAL  ACTION.  §  316 


of  1875^  which  provided  for  admitting  sugar  from  those  Is- 
lands free,  it  was  claimed  by  importers  of  sugar  from  the 
Danish  West  Indies  that  under  the  treaties  of  1826  and  1857 
they  were  entitled  to  similarly  import  their  sugar  free  of  duty. 
The  Supreme  Court,  however,  decided  that  as  Congress  had 
not  seen  fit  after  the  ratification  of  the  Hawaiian  treaty, 
to  enact  legislation  for  the  free  admission  of  such  sugar, 
the  courts  could  not  relieve  the  importers  from  duties  un- 
der the  provisions  of  the  general  tariff  law.  On  the  argu- 
ment of  this  case  counsel  having  suggested  that  the  Na- 
tional good  faith  and  honor  were  involved,  the  Court  asked 
the  pertinent  question  whether  the  government  of  Denmark 
had  made  any  claim  under  the  treat}^,  which  could  be  con- 
sidered by  the  Court  as  it  did  not  appear  that  any  such  claim 
had  been  made,  and  the  Court  decided  that  even  if  there  had 
been  a  breach  of  the  treaty  it  was  not  in  the  power  of  the 
court  in  the  absence  of  Congressional  legislation  to  rectify 
it,  but  that  it  would  be  a  matter  of  reclamation  by  the  gov- 

dominious  of  His  Majesty  the  King 
of  Denmark;  and  no  higher  or  other 
duties  shall  be  imposed  on  the  im- 
portation into  the  said  dominions 
of  any  article,  the  produce  or  man- 
ufacture of  the  United  States,  than 
are  or  shall  be  payable  on  the  like 
articles,  being  the  produce  or  man- 
ufacture of  any  other  foreign  coun- 
try. Nor  shall  any  higher  or  other 
duties  or  charges  be  imposed  in 
either  of  the  two  countries  on  the 
exportation  of  any  articles  to  the. 
United  States,  or  to  the  dominions 
of  His  Majesty  the  King  of  Den- 
mark, respectively,  than  such  as 
are  or  may  be  payable  on  the  ex- 
portation of  the  like  articles  to  any 
other  foreign  country.  Nor  shall 
any  prohibition  be  imposed  on  the 
exportation  or  importation  of  any 
articles,  the  produce  or  manufac- 
ture of  the  United  States,  or  of  the 
dominions  of  His  Majesty  the  King 
of  Denmark,  to  or  from  the  terri- 
tories of  the  United  States,  or  to  or 
from   the   said   dominions,   which 


shall  not  equally  extend  to  all  other 
nations. 

ARTICLE  V 

The  general  convention  of  friend- 
ship, commerce  and  navigation, 
concluded  between  the  United 
States  and  His  Majesty  the  King  of 
Denmark,  on  the  26th  of  April, 
182B,  and  which  was  abrogated  on 
the  15th  of  April,  1856,  and  the  pro- 
visions contained  in  each  and  all  of 
its  articles,  the  5th  article  alone  ex- 
cepted, shall,  after  the  ratification 
of  this  present  convention,  again 
become  binding  upon  the  United 
States  and  Denmark;  it  being,  how- 
ever, understood,  that  a  year's  no- 
tice shall  suffice  for  the  abrogation 
of  the  stipulations  of  the  said  con- 
vention hereby  renewed. 

■^  Convention  respecting  commer- 
cial reciprocity,  concluded  Janu- 
ary 30,  1875,  ratification  exchanged 
June  3,  1875,  U.  S.  Treaties  and 
Conventions,  edition,  1887,  p.  546. 


453 


§  317  TREATY-INIAKTNG  POWER  OF  THE  U.  S.  [CH.  X. 

eminent  of  Denmark  npon  the  Government  of  the  United 
States,  and  that  the  question  before  the  court  must  be  de- 
cided strictly  by  the  municipal  law  of  the  United  States  as 
it  had  been  established  by  Congress.'^ 

§317.  Chinese  exclusion ;  conflict  of  statutes  and  trea- 
ties ;  opinion  of  Justice  Field.  —Another,  and  perhaps  the 
most  notable  example  of  the  apparent  violation  of  treaties 
by  the  United  States,  through  Congressional  action,  was  the 
exclusion  of  the  Chinese  from  our  ports  notwithstanding 
treaty  stipulations  as  to  reciprocal  rights  of  subjects  of  the 
Chinese  Empire  and  citizens  of  the  United  States  to  freely 
come  and  go,  each  in  the  territor}'-  of  the  other.  The  Chi- 
nese Exclusion  Acts  were  claimed  by  many  to  be  in  direct 
violation  of  these  treaty  stipulations  and  the  various  Acts 
were  tested  in  the  courts  and  numerous  decisions  were  ren- 
dered as  to  their  validity  and  constitutionality.  The  courts 
uniformly  sustained  the  Acts  as  constitutional.  In  1889 
Judge  Field  delivered  a  leading  opinion  of  the  Supreme  Court 
on  this  subject  in  one  of  the  Chinese  cases  from  which  the 
following  extract  is  taken  :^ 

"  The  validity  of  this  act,  as  already  mentioned,  is  assailed 
as  being  in  effect  an  expulsion  from  the  country  of  Chinese 
laborers  in  violation  of  existing  treaties  between  the  United 
States  and  the  government  of  China,  and  of  rights  vested  in 
them  under  the  laws  of  Congress.  The  objection  that  the 
act  is  in  conflict  with  the  treaties  was  earnestly  pressed  in 
the  court  below,  and  the  answer  to  it  constitutes  the  princi- 
pal part  of  its  opinion.^  Here  the  objection  made  is,  that 
the  act  of  1888  impairs  a  right  vested  under  the  treaty  of 
1880,  as  a  law  of  the  United  States,  and  the  statutes  of  1882 
and  of  1881  passed  in  execution  of  it.  It  must  be  conceded 
that  the  act  of  1888  is  in  contravention  of  express  stipula- 
tions of  the  treaty  of  1868  and  of  the  supplemental  treaty 


^  Bar  tram  vs.  Bobertson,  U.  S. 
Sup.  Ct.  1887,  122  U.  S.  116,  Field, 
J.,  and  see  extract  from  opinion  in 
note  on  treaty  and  tariff  cases  un- 
der §371,  Vol.  II,  pp.  71,  et  seq. 

§317. 

^Chae  Chan  Pinrj  vs.  United 
States,    (Chinese    exclusion   case) 

454 


U.  S.  Sup.  ct.  1889,  130  U.  S.  .581, 
Field,  J.,  affirming  In  re  Chae 
Chan  Ping,  U.  S.  Cir.  Ct.  California, 
1888,  3G  Fed.  Kep.  431,  Sawyer,  J. 
2  Citing  In  re  Chae  Chan  Ping, 
U.  S.  Cir.  Ct.  Cal.,  1888, 36  Fed.  Rep. 
431,  Sawyer,  J. 


CH.  X.]       TREATIES  AND  CONGRESSIONAL  ACTION.  §  317 

of  1880,  but  it  is  not  on  that  account  invalid  or  to  be  re- 
stricted in  its  enforcement.  The  treaties  were  of  no  greater 
legal  obligation  than  the  act  of  Congress.  By  the  Constitu- 
tion, laws  made  in  pursuance  thereof  and  treaties  made  un- 
der the  authority  of  the  United  States  are  both  declared  to 
be  the  supreme  law  of  the  land,  and  no  paramount  authority 
is  given  to  one  over  the  other.  A  treaty,  it  is  true,  is  in  its 
nature  a  contract  between  nations  and  is  often  merely  prom- 
issory in  its  character,  requiring  legislation  to  carry  its  stip- 
ulations into  effect.  Such  legislation  will  be  open  to  future 
repeal  or  amendment.  If  the  treaty  operates  by  its  own 
force,  and  relates  to  a  subject  within  the  power  of  Congress, 
it  can  be  deemed  in  that  particular  only  the  equivalent  of  a 
legislative  act,  to  be  repealed  or  modified  at  the  pleasure  of 
Congress.  In  either  case  the  last  expression  of  the  sovereign 
will  must  control. 

"  The  effect  of  legislation  upon  conflicting  treaty  stipula- 
tions was  elaborately  considered  in  the  Head  Money  Cases, 
and  it  was  there  adjudged  '  that  so  far  as  a  treaty  made  by 
the  United  States  with  any  foreign  nation  can  become  the 
subject  of  judicial  cognizance  in  the  courts  of  this  country, 
it  is  subject  to  such  acts  as  Congress  may  pass  for  its  en- 
forcement, modification,  or  repeal.'^  This  doctrine  was 
affirmed  and  followed  in  Whitney  vs.  Robertson,  124  U.  S. 
190,  195.  It  will  not  be  presumed  that  the  legislative  de- 
partment of  the  government  will  lightly  pass  laws  which 
are  in  conflict  with  the  treaties  of  the  country  ;  but  that  cir- 
cumstances may  arise  which  would  not  only  justify  the  gov- 
ernment in  disregarding  their  stipulations,  but  demand  in 
the  interests  of  the  country  that  it  should  do  so,  there  can 
be  no  question.  Unexpected  events  may  call  for  a  change 
in  the  policy  of  the  country.  Neglect  or  violation  of  stipu- 
lations on  the  part  of  the  other  contracting  party  may  require 
corresponding  action  on  our  part.  When  a  reciprocal  engage- 
ment is  not  carried  out  by  one  of  the  contracting  parties,  the 
other  may  also  decline  to  keep  the  corresponding  engage- 


^Edye  vs.  Robertson,  U.  S.  Cir.  Ct . 
S.  D.  N.  Y.  1883,  21  Blatchf.  4G0, 
Blatciiford,  J.,  affiimed  U.  S. 
Sup.  Ct.  1884,  112  U.  S.  580,  Mil- 


ler, J.  Head  Money  Cases.  And 
see  extract  from  opinion  in  sec. 
376,  Vol.  II,  p.  82. 

455 


§  ol8  TREATY-MAKING  POWER  OF  THE  U.  8.  [CH.  X. 

ment.  In  1708  the  conduct  towards  this  country  of  thc^ 
o;overnment  of  France  was  of  such  a  character  that  Cone^ress 
declared  that  the  United  States  were  fi-eed  and  exonerated 
from  the  stipulations  of  ]irevions  ts'eaties  witli  tliatcountrv/'^ 

§  318.  This  same  subject  treated  at  length  in  a  siibse- 
qneiit  eliapter. — It  is,  however,  rather  anticipating  the  reg- 
ular order  to  refer  to  decisions  of  the  courts,  at  this  point ; 
the  legal  principles  established  in  the  Chinese  exclusion  cases 
^vill  be  discussed  as  to  the  relative  effects  of  treaty  stipula- 
tions, and  State  laws  in  the  next  chapter,^  and  as  to  United 
States  statutes  in  the  next  chapter  but  one.^ 

The  specific  instances  in  which  treaties  have  been  held 
to  operate  without  legislation,  whereby  they  have  annulled 
State  legislation  or  prior  congressional  legislation  and  where 
they  have  been  affected  or  abrogated  by  subsequent  legisla- 
tion of  Congress,  also  form  the  subject  of  a  subsequent  chap- 
ter,^ and  no  further  reference  will  be  made  now  to  them  in 
this  chapter  which  should  have  been  confined  to  the  Con- 
gressional debates  and  action  in  regard  thereto ;  in  conclud- 
ing this  chapter  on  the  participation  of  both  houses  in  the 
treaty-making  power,  however,  attention  is  called  to  the  fact 
that  while  congressional  action, — that  is  action  by  a  major- 
ity of  both  houses, — may,  contrary  to  the  expectations  of 
the  framers  of  the  Constitution,  serioush^  affect  treaty  stipu- 
lations made  with  foreign  powers,  there  is  nothing  in  any  of 
the  cases  decided,  or  in  any  congressional  action  already 
taken,  which  places  an}'^  limitations  upon  the  treaty-making 
power  as  it  exists  in  the  Central  Government.  The  possi- 
bility of  a  majority  of  both  houses  of  Congress  being  able, 
with  the  President's  consent,  to  override,  or  of  a  majority  of 
one  branch  being  able  to  frustrate,  the  Executive  and  two- 
thirds  of  the  Senate,  is  not  to  be  regarded  a  limitation  upon 
the  power,  proceeding  from  any  external  or  superior  force, 
but  only  a  diificulty  in  exercising  it,  owing  to  disagreement 
between  themselves  of  the  various  elements  of  the  Central 


*Tlie  quotation  is  on  pages  599- 
601,  130  U.  S.  Rep. 

§318. 

^  Chapter  XI,  and  see  especially 
§§  336,  et  seg.,  Vol.  II,  pp.  24,  et  seq. 

456 


2  Chapter  XII,  and  see  especially 
§§  379,  et  .oeq..  Vol.  II,  pp.  87.  et  seq. 

3  Chapter  XII,  and  see  especially 
§§  379,  et  seq.,  Vol.  II,  pp.  87,  et  seq. 


CH.  X.]        TREATIES  AND  CONGRESSIONAL  ACTION.  §  318 

Government  itself.  The  power,  as  lodged  in  the  Central 
Government  in  all  of  its  breadth  and  scope,  in  all  of  its  far- 
reaching  effects  over  the  Union  and  all  of  the  constituent 
parts  thereof,  in  all  of  its  varied  phases  and  aspects,  has  never 
been  diminished  by  any  of  the  decisions  of  the  court  or  posi- 
tions taken  in  Congress,  and  which  relate  only  to  the  method 
of  exercising  the  power,  or  of  modifying  the  effects  thereof, 
by  the  National  Government  itself,  or  of  the  various  Depart- 
ments of  the  National  Government.^ 


2  Congressional  Discussion  of  1902  as  to  Control  of  House  of 
Representatives  over  Tariff  Laws  and  Treaty  Stipulations 
Affecting  Tariff. 

The  discussion  as  to  the  power  of  the  House  of  Representatives  to 
control  tariff  legislation  and  the  necessity  of  Congressional  action  to 
make  treaty  stipulations  affecting  tariff  provisions  effectual,  has  been 
renewed  in  the  o7th  Congress  just  as  this  volume  is  going  to  press. 

On  January  29Lh,  1902,  Senator  CuUoni  of  Illinois,  Chairman  of  the 
Committee  on  Foreign  Relations,  delivered  an  address  in  the  Senate  of 
the  United  States  on  the  extent  of  the  treaty-making  power  (Cong. 
Rec.  January  29,  1902,  pp.  1104-1111),  in  which  he  declared  (p.  1111) 
that  the  "  authority  of  the  House  of  Representatives  in  reference  to 
treaties  has  been  argued  and  discussed  for  more  than  a  century,  and 
has  never  been  settled  in  Congress,  and  perhaps  never  will  be.  The 
House,  each  time  the  question  was  considered,  insisted  upon  its  pow- 
ers, but  nevertheless  has  never  declined  to  make  an  appropriation  to 
carry  out  the  stipulations  of  a  treaty,  and  I  contend  that  it  was  bound 
to  do  this,  at  least  as  much  as  Congress  can  be  bound  to  do  anything 
when  the  faith  of  the  nation  had  been  pledged.  And  this  appears  to 
me  to  be  the  only  case  in  which  any  action  by  the  House  is  necessary, 
unless  the  treaty  itself  stipulates,  expressly  or  by  implication,  for  such 
Congressional  action.'" 

Senator  Cullom  cited  the  instances  on  which  this  subject  has  been 
discussed  in  Congress.  He  referred  to  the  Hawaiian,  Canadian  and 
Mexican  reciprocity  treaties,  and  declared  that  they  did  not  go  into 
effect  without  legislation  because  the  treaty  expressly  provided  that 
legislation  must  first  be  enacted;  he  said  (p.  1110):  "  In  the  reciprocity 
treaty  with  Mexico,  negotiated  by  General  Grant,  Congress  failed  to 
enact  the  necessary  laws  and  the  treaty  never  went  into  practical  effect. 

"Had  the  provision  for  Congressional  action  been  omitted  in  the 
Hawaiian,  Canadian  and  Mexican  rociprocity  treaties,  they  would  have 
become  effective  at  once  upon  the  exchange  of  ratifications." 

The  House  of  Representatives  took  up  the  gage  thrown  down  by 
Senator  Cullom,  and  on  January  31st,  1902  (Cong.  Rec,  p.  1193),  the 
following  Resolution  (House  No.  114),  was  offered  by  Mr.  Dalzell  of 
Pennsylvania,  from  the  Committee  on  Rules,  and  was  agreed  to: 

457 


§  318  TREATY-MAKING  POWER  OF  THE  U.  S.  [CH.  X. 

"  Whereas,  it  is  seriously  claimed  that  under  the  treaty-makiiif;  power 
of  the  Govermnent,  and  without  any  action  whatever  on  the  part  of  the 
House  of  Representatives,  or  by  Congress,  reciprocal  trade  agreements 
may  be  negotiated  with  foreign  governments  that  will  of  their  own 
force  operate  to  supplant,  change,  increase,  or  entirely  abrogate  duties 
on  imports  collected  under  laws  enacted  by  Congress  and  approved  by 
the  Executive  for  tlie  purpose  of  raising  revenue  to  maintain  the  Gov- 
ernment: Xow,  therefore,  be  it 

'*  Resolved  by  the  House  of  Representatives,  that  the  Committee  on 
Ways  and  Means  be  directed  to  fully  investigate  the  question  of  whether 
or  not  the  President,  by  and  with  the  advice  and  consent  of  the  Senate, 
and  independent  of  any  action  on  the  part  of  the  House  of  Representa- 
tives, can  negotiate  treaties  with  foreign  governments  by  which  duties 
levied  under  an  act  of  Congress  for  the  purpose  of  raising  revenue  are 
modified  or  repealed,  and  report  the  result  of  such  investigation  to  the 
House." 

The  resolution  was  adopted  without  debate,  but  Mr.  Moody  (Massa- 
chusetts) asked  "  if  there  is  any  instance  in  our  history  where  thex'e  has 
been  a  change  in  the  taritf  laws  through  the  operation  of  a  treaty  with- 
out the  concurrence  of  the  House  of  Representatives  ? "  To  which 
Mr.  Dalzell  replied:  "I  will  say  to  the  gentleman  from  Massachusetts 
that  I  know  of  none." 

Right  to  make  Treaty  Stipulations  effectual  by  Executive 
Proclamation. 

The  real  question  involved  in  the  present  Congressional  debate  is 
whether  treaty  stipulations  as  to  tariff  can  be  made  effectual  by  Execu- 
tive proclamation  instead  of  by  legislation.  This  involves  the  same 
question  that  was  raised,  but  never  finally  decided,  in  regard  to  extra- 
dition treaties.  See  British  Prisoners  and  other  cases  cited  in  §  374, 
pp.  79,  et  seq.,  ante. 

Tlie  general  extradition  statute  relates  to  all  treaties  then  pr  thereafter 
made  regardless  of  time  and  extent  of  privileges.  Xo  such  provisions 
exist  in  the  tariff  laws.  The  act  of  1897  (30  U.  S.  St.  at  L.,  p.  151,  see 
pp.  203-205)  provides  that  certain  specified  treaty  stipulations  made  as 
to  reciprocal  trade  relations  may,  within  a  specified  time,  be  enforced 
by  proclamation,  but  no  general  law  exists  giving  the  Executive  gen- 
eral power  outside  of  those  limitations.  The  positions  maintained  by 
the  two  Houses  of  Congress  must  stand  or  fall  according  to  such  con- 
struction of  the  provisions  of  the  Constitution  as  to  treaty-making,  as 
the  Supreme  Court  shall  finally  determine.  See  the  cases  cited  in 
§§365,  et  seq.,  of  chap.  XII,  pp.  67,  et  seq.,  of  Vol.  II. 

B.  Note  1  to  §  298,  p.  431,  ante.  The  treaties  made  with  Mexico  in 
1883  (U.  S.  Tr.  and  Con.,  ed.  1889,  714),  contained  reciprocal  trade  pro- 
visions as  to  duties.  They  were  not  to  go  into  effect  until  Congress 
passed  the  necessary  legislation.  It  does  not  appear  that  this  legisla- 
tion was  ever  enacted. 

458 


INSULAR  OASES  APPENDIX. 

459 


INSULAR  CASES  APPENDIX. 


TABLE  OF  CONTENTS  TO  APPENDIX. 


Page 

Insular  Cases,  why  so-called  and  questions  involved 465 

Insular  Cases,  Records  published  by  Congressional  resolution 465 

SYNOPSIS  OF   CASES  AND  DECISIONS. 

I.  Goetze  vs.  United  States.     For  duties  paid  in  United  States  on 

mercliandise  from  Porto  Rico  after  ratification  of  treaty  and 

prior  to  Foraker  Act,  Records,  Briefs  and  Arguments 465 

Decision  (no  separate  opinion) 466 

II.  Fourteen  Diamond  Einrjs,  Pepke,  Claimant,  vs.  United  States. 
Information  for  unpaid  duties  on  merchandise  from  the  Phil- 
ippine Islands  after  the  ratification  of  treaty;  Records,  Briefs 

and  Arguments 467 

Decided  December  2,  1901,  opinions  in  full  in  supplement; 
Opinion  of  Court,  Fuller,  Ch.  J.,  563;  Concurring  Opinion, 
Bbown,  J.,  567;  Dissenting  Opinions,  569. 

III.  De  Lima  vs.  Bidwell.  For  duties  unpaid  in  United  States  on 
mercliandise  from  Porto  Rico  after  ratification  of  treaty  and 

prior  to  Foraker  Act,  Records,  Briefs  and  Arguments 468 

Opinion  of  Court,  Bbovtn,  J 469 

Other  Opinions 474 

IV.  Downes  vs.  Bidwell.  For  duties  paid  in  United  States  on  mer- 
chandise from  Porto  Rico  under  the  Foraker  Act,  Records, 

Briefs  and  Arguments 474 

Opinion,  Brown,  J 476 

Concurring  Opinion,  White,  J 482 

Concurring  Opinion,  Gray,  J 489 

Dissenting  Opinions 491 

V.  Dooley  vs.  United  States,  No.  1.     For  duties  paid  in  Porto  Rico 

on  merchandise  brought  from  the  United  States,  after  occupa- 
tion of  the  Island  and  prior  to  the  Foraker  Act,  Records,  Briefs 

and  Arguments 495 

Opinion,  Bkown,  J 496 

Dissenting  Opinion 501 

VI.  Dooley  vs.  United  States,  No.  2.     For  duties  paid  in  Porto  Rico 

461 


462  TREAT if-IVLA-KlNG  POWER  OF  THE  U.  S. 

Page 
on  merchandise  brought  from  United  States  under  the  Foraker 

Act,  Records,  Briefs  and  Arguments 501 

Decided,  December  2,  1901;  Opinions  in  full  in  supplement; 
Opiui(m  of  Court,  Brown,  J.,  569;  Concurring  Opinion,  White, 
J.,  573;  Dissenting  Opinion,  Fuller,  Cb.  J.,  579. 

VII.  Ar)))Strong  vs.  United  States.  For  duties  paid  in  Porto  Rico 
on  mercliandise  brought  from  United  States  before  the  Foraker 

Act,  Records,  Briefs  and  Arguments 502 

Decision  (no  separate  opinion) 502 

VIII.  Hhus  vs.  N.    Y.  and  Porto  Rico  Steamship  Company.     For 
pilotage  dues  in  harbor  of  New  York  on  vessels  from  Porto 
Rico  after  ratification  of  treaty.  Records,  Briefs  and  Arguments  503 
Opinion,  Brown,  J 504 

IX.  Crossman  vs.  United  States.  For  duties  paid  in  New  York  on 
merchandise  brought  from  Hawaiian  Islands  after  the  resolution 

of  annexation.  Records,  Briefs  and  Arguments 506 

Opinion,  Bkown,  J 506 

Peace  Protocol  of  August  12,  1898 507 

Treaty  of  Peace  between  United  States  and  Spain  of  De- 
cember 10, 1898 508 

Joint  Resolution  of  July  7,  1898,  for  Annexation  of  Ha- 
waiian Islands 513 

Tariff  Provisions  of  the  Foraker  Act 515 

Executive  orders  of  the  President  as  to  tariff  in  Porto 
Rico 517 

Constitution  of  United  States 519 

Amendments  to  the  Constitution  of  the  United  States 529 

analysis  and  classification  of  cases  cited  in  briefs,  arguments 
and  opinions. 

I.  Nationality  and  Sovereignty  of  the  United  States,  and  sovereign 

powers  of  the    Central  Government 5.35 

II.  Power  of  the  United  States  to  acquire  territory 537 

III.  The  Constitution  of  the  United  States  and  its  operation  in  and 
extension  over  territory  of  the  United  States 538 

IV.  Status  of  the  Districtof  Columbia 540 

V.  Construction  of  the  Constitution  of  the  United  States 540 

VI.  Division  of  Sovereignty  between  the  Federal  Government  and 
State  Governments 542 

VII.  Separate  Departments  of  the  Government  of  the  United  States, 
Executive,  Legislative  and  Judicial,  and  the  functions  of  each.  543 


INSULAR   CASES   APPENDIX.  463 

Page 

VIII.  Powers  of  the  Judicial  Department  of  the  United  States  Gov- 
ernment, including  those  of  Territorial  Courts 545 

IX.  Construction  of  Uniformity  and  Commerce  Clauses  of  the  Con- 
stitution of  the  United  States;  Federal  and  State  Powers  of 
Taxation  and  Control  of  Commerce 54b' 

X.  Construction  of  Tariff  and  other  Laws  of  the  United  States. . . .   547 

XI.  Judicial  Definitions  of  terras  used  in  the  Constitution  of  the 
United  States,  and  in  Tariff  and  other  Laws 548 

XII.  Application  of  the  first  ten  Amendments  (Bill  of  Rights)  of 
the  Constituti(m  of  the  United  States;  their  effect  on  the  States, 
and  on  Federal  Laws 549 

XIII.  Fundamental  limitations  of  Government,  and  their  effect 
upon  the  Congressional  Government  of  territory  of  the  United 
States 549 

XIV.  Suability  of  the  United  States,  and  States,  by  citizens  and  by 
aliens 550 

XV.  Military  Powers  and  Government;  Military  Occupancy.  Prize 
and  Conquest 550 

XVI.  National  Unity  and  the  Control  of  the  Foreign  Relations  of 
the  United  States  by  the  Central  Government 552 

XVII.  Extent  of  the  Treaty-Making  Power  of  the  United  States.  552 

XVIII.  Effect  of  Cession  of  Territory,  by  Treaty  and  by  Conquest, 
on  private  rights  of  the  inhabitants  and  on  the  Continuance  of 
Local  Laws  of  the  Ceded  Territory 55.3 

XIX.  Personal  and  individual  rights  and  liberties  guaranteed  by 
the  Constitution  of  the  United  States 555 

XX.  Citizenship,  Birth  and  Allegiance,  as  affected  by  Treaties,  Stat- 
utes and  the  Constitution 556 

XXI.  Construction  of  Treaties  and  General  Rules  applicable  thereto. 
Executive  and  Judicial  Construction,  Congressional  Power  there- 
over   558 

XXII.  Relative  Effects  of  Treaties  and  United  States  Statutes 560 

XXIII.  Relative  Effects  of  Treaties  made  by  the  United  States  and 
State  Laws 561 

XXIV.  When  Treaties  take  effect  as  to  the  Contracting  Govern- 
ments and  as  to  the  rights  of  individuals  affected  thereby 561 

XXV.  Status  of  Indian  Tribes  and  the  Construction  of  Indian 
Treaties;  the  relative  effect  of  Indian  Treaties  and  State  and 
Federal  Laws 562 

SUPPLEMENT. 

OPINIONS  OF  DECEMBER  2,  1901. 

Fourteen  Diamond  Rings,  Pepke,  Claimant,  Opinion  of  Court,  Ful- 
ler, Ch.  J 563 


4(34  TREATY-MAKING  POWER  OF  THE  U.  S. 

Page 

Concuning  Opinion,  Brown,  J 567 

Disseiuing  Opinions 569 

Dooley  vs.  United  Statea,  No.  2,  Opinion  of  Court,  Brown,  J 569 

Concurrin'j;  Oijinion,  White,  J 573 

Dissenting  Opinion,  Fuller,  Cli.  J 579 


THE  INSULAR  CASES. 


QUESTIONS   INVOLVED. 

The  Tnfiiilar  Cai^es,  so-called  because  they  involved  the  status  of  the 
possessions  ceded  to  the  United  States  by  Spain,  by  the  Treaty  of  1898 
(for  this  treaty  in  full  see  p.  508,  pos/,  of  this  Appendix),  were  nine 
in  number  and  were  argned  before  tlie  Supreme  Court  of  the  United 
States  during  the  October  term  of  1900.  They  are  briefly  discussed  in 
chapter  II,  §§61-61/i,  pages  118,  et  seq.,  ante.  Tiiey  are  also  referred 
to,  and  cited  at  other  points  in  both  volumes  as  the  decisions  have  a 
direct  bearing  upon,  and  application  to,  many  of  tlie  subdivisions  of 
this  book,  both  in  regard  to  the  nationality  and  sovereignty  of  the 
United  States  and  the  extent  and  effect  of  the  treaty-making  power. 

THE   INSULAR   CASES   KECORDS. 

As  stated  in  note  1  to  §  61a,  page  118,  mite,  after  the  arguments  of 
these  cases  before  the  Supreme  Court  and  pursuant  to  a  joint  Resolu- 
tion of  Congress  (passed  by  the  House  of  Representatives  February  9, 
1901,  and  concurred  in  by  the  Senate  February  15,  1901),  12,000  copies 
of  the  "  records,  briefs  and  arguments  of  counsel,"  were  printed  for  the 
use  of  Congress  and  the  several  departments  of  the  Government  with 
the  following  official  title: 

"  The  Insulur  Cases,  Comprising  the  Records,  Briefs,  and  Arguments 
of  Counsel  in  the  Insular  Cases  of  the  October  Term,  1900,  in  the  Su- 
preme Court  of  the  United  States,  including  the  appendices  thereto. 
Compiled  and  Published  Pursuant  to  H.  R.  Con.  Res.  No.  72,  Fifty- 
Sixth  Congress,  Second  Session.  By  Albert  H.  Howe,  Clerk  of  Printing 
Records,  1901,     Washington,  Government  Printing  Office,  1901." 

This  combined  record  consists  of  1,075  pages  besides  an  analytical 
table  of  contents  of  39  pages.  The  following  summaries  have  been  com- 
piled from  this  volume,  to  which  reference  is  constantly  made. 

The  nine  cases  which  were  argued,  the  points  involved  in  each,  and 
the  time  when,  and  counsel  by  whom,  they  were  respectively  argued, 
and  the  citations  of  the  decisions  in  the  official  reports  of  the  Supreme 
Court  of  the  United  States,  are  as  follows: 

I. 

John  H.  Goetze  doing  Business  under  the  Firm  Name  and  Style 
OF  John  H.  Goetz  &  Co.,  Appellant,  vs.  The  United  States. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York.  No.  340.  October  Term,  1900.  Record  filed 
July  9,  1900. 

30  465 


466  TREATY -ISIAKING  POWER  OF  THE  U.  S. 

For  John  H.  Goetze: 

CoMSTocK  iS-  Brown  (56  Pine  St.,  "N".  Y.)  Attorneys,  and  Edward  C. 
Pkkkixs  {115  Broadway,  X.  Y. )  and  Ev'erit  Brown  (56  Pine  St.,  N.  Y.) 
of  counsel,  and  J.  B.  Henderson,  Washington  (in  tlie  Supreme  Court). 

For  the  United  States: 

Before  the  General  Appraisers,  William  J.  Gibson,  New  York.  In 
the  Circuit  Court,  Henry  L.  Burnett,  United  States  District  Attorney. 

In  the  Supreme  Court,  John  W.  Griggs,  Attorney  General  of  the 
United  States. 

The  petition  was  originally  filed  under  the  Customs  Administrative 
Act  for  a  refund  of  duties  paid  under  protest  on  goods  from  Porto 
Kico  entered  in  the  Port  of  New  York  in  April  and  June,  1899, 
after  the  ratification  of  the  treaty  of  1898  with  Spain  and  prior  to  the 
Foraker  Act.  The  proceedings  before  the  appraisers  were  entitled, 
"  In  the  Matter  of  Protest,  Xos.  54053  F  and  54168.F  of  John  H.  Goetze 
&  Co."  The  Board  of  General  Appraisers,  before  whom  the  proceedings 
were  brought,  decided  on  February  14,  1900,  that  Porto  Rico  was  a  foi'- 
eign  country  for  tariff  purposes.  For  the  decision  in  full  see  Exhibit  D, 
pp.  8,  et  seq.  Ins.  Cas.  Kcc.  and  Treasury  Decisions,  volume  3,  1900, 
22018  GA.  4658.  Opinion  by  H.  31.  Somerville,  Geu'l  Appr.,  concurred  in 
by  Geo.  C.  Tichenor  and  I.  F.  Fischer,  Geu'l  Apprs.  Subsequently 
Goetze  &  Co.  appealed  from  the  decision  of  the  Board  of  General  Ap- 
praisers to  the  Circuit  Courtof  the  United  States  for  the  Southern  District 
of  New  York.  The  case  was  tried  before  William  K.  Townsend,  District 
Judge  sitting  at  Circuit,  and  on  June  14,  1900  he  filed  an  opinion  affirm- 
ing the  Board  of  General  Appraisers.  (For  opinion  in  full  see  pp.  21,  et 
seq.  Ins.  Cas.  Rec,  and  103  Fed.  Rep.  72.)  Thereafter  Goetze  &  Co.  ap- 
pealed to  the  Supreme  Court  of  the  United  States  on  assignment  of  er- 
ror (Ins.  Cas.  Rec.  p.  35).  The  writ  was  allowed  by  E.  H.  Lacombe, 
U.  S.  Circuit  Judge  (Ins.  Cas.  Rec.  p.  37). 

On  October  8,  1900,  a  motion  was  made  by  the  appellant  to  advance 
the  cause  upon  the  docket  of  the  Supreme  Court  (Ins.  Cas.  Rec,  pp.  41, 
etseq.)  in  which  the  Attorney  General  joined.  The  application  was 
granted  in  this  and  other  cases  involving  similar  questions.  These  cases 
were  argued  simultaneously  on  December  18  and  19,  1900. 

Briefs  were  filed  on  behalf  of  the  appellant  by  Edward  C.  Perkins, 
Albert  Comstock,  Everit  Brown  and  John  B.  Henderson  of  counsel 
(pp.  45-136,  Ins.  Cas.  Rec,  and  see  analysis  and  list  of  cases  cited  in 
Table  of  Contents,  Ins.  Cas.  Rec,  pp.  i-v. ) 

A  brief  was  filed  in  this  case  and  in  the  case  of  Fourteen  Diamond 
Rings  referred  to  at  a  later  point  in  this  Appendix  by  John  ir.  Griggs, 
Attorney  General,  on  behalf  of  the  United  States  (Ins.  Cas.  Rec.  pp.  137- 
237,)  and  containing  as  appendices  (on  pp.  226-236)  the  Protocol  of  Au- 
gust 12,  the  treaty  of  1898  with  Spain,  extracts  from  other  treaties  and 
the  record  in  LoughboroiKjh  vs.  Blake,  (U.  S.  Sup.  Ct.  1821,  5  Wheaton, 
317,  Marshall,  Ch.  J.)  •  A  brief  was  also  filed  with  leave  of  the  court 
on  behalf  of  "  Industrial  Interests  in  the  States,"  by  E.  Ham  and  Alex- 


INSULAR  CASES  APPENDIX.  467 

ANPEB  Porter  Morse,  Attorneys,  and  Charles  F.  Manderson  of 
counsel,  which  sustained  the  position  of  the  United  States  (pp.  239-273, 
Ins.  Cas.  Kec).  For  analysis  of  these  briefs  and  list  of  cases  cited,  see 
Table  cf  Contents,  Ins.  Cas.  Kec.  pp.  v-xiv.  Subsequently  a  brief  was 
also  filed  in  support  of  the  position  of  the  Government  of  the  United 
States  by  Charles  A.  Gardiner  of  New  York  City  (195  Broadway).  It 
was  not  included  in  the  Insular  Cases  Record.  The  argument  of  the 
counsel  for  appellant  is  included  in  the  briefs  already  referred  to.  At 
the  same  time  argument  was  heard  in  the  Fourteen  Diamond  Rings  case 
referred  to  at  another  point  in  this  Appendix  and  which  involved  the 
status  of  the  Philippine  Islands. 

The  argument  of  the  Attorney  General  appears  in  Ins.  Cas.  Rec.  at 
pp.  275-337,  and  an  analysis  and  list  of  authorities  cited  in  the  Table  of 
Contents,  Ins.  Cas.  Rec.  pp.  xiv-xvii. 

This  case  was  decided  May  27,  1901,  in  favor  of  the  importers;  no 
opinion  was  delivered  as  the  court.  Brown,  J.,  held  that  as  the  sole 
question  was  whether  Porto  Rico  was  a  foreign  country  within  the  mean- 
ing of  tariff  laws,  the  reasons  stated  in  De  Lima  vs.  Bidwell,  decided 
the  same  day  applied,  (182  U.  S.  221;  see  opinion  in  full  p.  506,  post,  of 
this  Appendix.) 

II. 

Fourteen  Diamond  Rings,  Emil  J.  Pepke,  Claimant,  vs.  The  Uni- 
ted States. 

In  error  to  the  District  Court  of  the  United  States  for  the  Northern 
District  of  Illinois.  No.  419,  October,  1900,  transcript  filed  Septem- 
ber 17,  1900.     Ins.  Cas.  Rec.  369. 

For  the  claimant,  Lawrence  Harmon  and  Charles  H.  Aldrich, 
Chicago,  111.,  Attorneys  in  both  the  District  and  the  Supreme  Court. 

For  the  United  States: 

In  the  District  Court,  S.  II.  Bethea,  United  States  District  Attor- 
ney for  the  Northern  District  of  Illinois. 

In  the  Supreme  Court,  John  W.  Griggs,  Attorney  General,  and  John 
K.  Richards,  Solicitor  General  of  the  United  States. 

This  case  involves  the  right  of  the  United  States  to  collect  duties  un- 
der the  Dingley  Act  on  goods  brought  from  the  Philippine  Islands  after 
the  ratification  of  the  treaty  of  peace;  it  corresponds  with  the  De  Lima 
caseinall  respects  except  in  so  far  as  there  maybe  any  difference  between 
the  status  of  Porto  Rico  and  that  of  the  Philippine  Archipelago  as  posses- 
sions or  territories  of  the  United  States.  If  there  were  no  dilTerence  as  to 
the  status  of  tlie  ditLnent  territories  which  wore  ceded  by  the  treaty  of 
December,  1898,  the  decision  would  naturally  have  followed  that  of  the 
De  Lima  case;  the  fact  that  the  court  decided  the  De  Lima  case 
and  did  not  ^decide  an  apparently  similar  case  affecting  the  Philippines 
naturally  affords  a  basis  for  the  inference  tiiat  at  least  one  member  of 


468  TREATY-MAKING  POWER  OF  THE  U.  S. 

tlie  court  cousiilers  that  there  is  a  difference  between  the  status  of  the 
Philippines  aud  that  of  Porto  Rico. 

The  rings  were  seized  on  an  information  by  the  United  States  filed 
June  11,  1900  (Ins.  Cas.  Rec.  p.  3G9).  The  claimant  interposed  a  plea 
that  the  goods  were  non-dutiable  having  been  brought  from  another  part 
of  the  United'States  (Ins.  Cas.  Rec.  373).  The  United  States  demurred 
and  on  July  10,  1900,  a  pro  formit  judgment  sustaining  the  demurrer 
was  entered,  C.  C.  Kohlsaat,  J.,  lus.  Cas.  Rec.  p.  376. 

A  writ  of  error  was  allowed.  A  motion  was  made  before  the  Supreme 
Court  to  advance  the  cause,  which  was  granted  and  the  case  set  down 
with  the  Goetze  case  for  argument  in  December,  1900,  (Ins.  Cas.  Rec. 
p.  385).     The  case  was  reached  and  argued  December  18  and  19. 

Two  brief  were  filed  for  the  plaintiff  in  error  (claimant  below)  by 
Charles  H.  Aldrich  and  Lawrence  Harmox,  Attorneys.  The  cause 
was  argued  for  the  claimant,  plaintiff  in  error,  by  Charles  II.  Aldrich. 
Ins.  Cas.  Rec.  pp.  387-491  (including  appendix),  and  for  analysis  aud  list 
of  authorities  cited,  see  Table  of  Contents,  Ins.  Cas.  Rec.  pp.  xvii-xx. 

The  briefs  and  arguments  of  the  United  States  in  this  case  were  the 
same  as  those  filed  in  the  Goetze  case.     See  p.  466,  ante,  of  this  Appendix. 

This  case  has  not  yet  been  decided,  November,  30,  1901. 

III. 
Elias  S.  a.  De  Lima,  Elias  A.  De  Lima  and  Edward  De  Lima,  com- 
posing THE  firm  of  D.  a.  De  Lima  &  Co.,  Plaintiffs  in  Error, 
vs.  George  R.  Bidwell. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York.  No.  456,  October  Terra,  1900.  Transcript  filed 
October  23,  1900.     (Ins.  Cas.  Rec.  p.  493.) 

For  De  Lima  &  Co. 

Coudert  Bros.  ,  71  Broadway,  New  York  City,  Attorneys.  Frederick 
R  Coudert,  Jr.,  Charles  Frederick  Adams  and  Faxjl.  Fuller,  New 
York,  of  counsel. 

For  George  R.  Bidwell  (collector),  etc: 

In  the  Circuit  Court  Henry  L.  Burnett,  United  States  District  At- 
torney, for  the  Southern  District  of  New  York. 

In  the  Supreme  Court  John  W.  Griggs,  Attorney-General  of  the  Uni- 
ted States,  and  John  K.  Richards,  Solicitor  General. 

This  action  was  commenced  in  September,  1899,  in  the  Supreme  Court 
of  the  state  of  New  York  (First  Judicial  Department)  to  recover  cer- 
tain duties  paid  to  the  defendant,  the  United  States  collector  of  customs 
at  the  port  of  New  York,  on  sugars  brouglit  from  Porto  Rico  after  the  ex- 
change of  ratifications  of  the  treaty  of  1898  with  Spain,  and  prior  to  the 
Foraker  Act  taking  effect.  The  plaintiff  claimed  that  the  duties,  which 
were  paid  under  protest,  had  been  wrongfully  exacted  by  the  defendant 
under  color  of  his  office  as  such  collector.  (For  complaint^ee  Ins.  Cas. 
Rec.  p.  495).     The  cause  was  removed  by  the  defendant  to  the  United 


INSULAR  CASES  APPENDIX.  469 

States  Circuit  Court  (Ins.  Cas.  Rec.  p.  497),  in  which  court  the  defend- 
ant demurred;  on  October  16,  1900,  the  demurrer  was  sustained  {pro 
forma)  Alfred  C.  Coxe,  J.,  and  judgment  to  that  effect  entered  in 
favor  of  the  defendant  (Ins.  Cas.  Rec.  p.  499),  following  the  decision  of 
TowNSEND,  J.,  in  the  Goetze  case  referred  to  on  p.  406,  ante,  of  this  Ap- 
pendix (103  Fed.  Rep.  72).  A  writ  of  error  was  allowed  (Ins.  Cas.  Rec. 
p.  503).  A  motion  to  advance  was  made  befoi'e  the  Supreme  Court  and 
granted,  (Ins.  Cas.  Rec.  p.  50.t). 

This  case  was  reached  on  Januarys,  1901,  and  argued  simultaneously 
with  other  cases,  involving  similar  questions. 

A  brief  was  filed  for  the  plaintiffs  in  error  by  Messrs.  Coudert, 
Adams  and  Fuller,  and  a  separate  brief  in  reply  by  Mr.  Fuller  (Ins. 
Cas.  Rec.  pp.  509-582);  Frederick  R.  Coitdert,  Jr.,  argued  the  case 
for  the  appellants  (Ins.  Cas.  Rec.  pp.  5S3-G08;  and  for  analysis  and  list 
of  authorities  cited  in  briefs  and  arguments,  see  Table  of  Contents,  Ins. 
Cas.  Rec.  pp.  xx-xxiii.) 

Two  briefs  were  filed  for  the  United  States  by  John  K.  Richards, 
Solicitor  General,  which  was  entitled  not  only  in  this  case  but  in  Dowries 
vs.  Bidwell,  Dooley  vs.  United  States,  (2  cases),  Armstrong  vs.  United 
States  and  Crossinan  vs.  United  States,  all  of  which  were  argued  to- 
gether. (Ins.  Cas.  Rec.  pp.  609-662.)  A  supplemental  argument  was 
made  by  the  Attorney  General  (Ins.  Cas.  Rec.  pp.  66.3-684).  The  cases 
were  orally  argued  by  the  Solicitor  General  on  July  9,  1901  ( Ins.  Cas.  Rec. 
pp.  685-720,  and  for  analysis  and  list  of  authorities  cited,  see  Table  of 
Contents,  Ins.  Cas.  Rec.  pp.  xxiii-xxvii). 

The  Supreme  Court  reversed,  M;iy  27,  1901,  (182  U.  S.  Rep.  1),  the 
judgment  of  the  Circuit  Court,  holding  that  the  duties  were  illegally  ex- 
acted because  Porto  Rico  was  not  "foreign"  country  within  the  mean- 
ing of  the  tariff  laws,  after  the  ratification  of  the  treaty,  but  was  terri- 
tory of  the  United  States. 

justice  brown's  opinions  in  de  lima  case. 

The  opinion  was  delivered  by  Justice  Brown  with  whom  Chief  Jus- 
tice Fuller  and  Justices  Harlan,  Brewer  and  Peckiiam  concurred; 
a  dissenting  opinion  was  delivered  by  Justice  McKenna  in  which  Jus- 
tices Shiras  and  White  concurred;  Mr.  Justice  Gray  also  delivered  a 
dissenting  opinion  (see  p.  474  of  this  appendix,  post). 

Justice  Brown  in  his  opinion  declared  that  by  the  "  ratification  of  the 
Treaty  of  Paris,  Porto  Rico  became  territory  of  the  United  States  al- 
thou<j:h  not  an  organized  territory  in  the  technical  sense  of  the  word; " 
and  that  it  did  not  continue  in  its  status  of  foreign  territory  so  as  to 
permit  of  collection  of  duties  on  merchandise  brought  therefrom  under 
the  existing  tariff  laws  providing  for  the  imposing  of  duties  on  goods 
brought  from  foreign  countries.  (30  U.  S.  Stat,  at  L.,  p.  151,  Chap.  11, 
First  Session,  Fifty-fifth  Congress,  ajjproved  July  24,  1897,  known  as  the 
Dingley  Act.)     The  first  section  of  this  act  is  as  follows: 

Be  it  enacted,  etc.,  "That  on  and  after  the  passage  of  this  Act,  unless 
otherwise  specially  provided  for  in  this  Act,  there  shall  be  levied,  col- 
lected, and  paid  upon  all  articles  imported  from  foreign  countries,  and 


470  TREATY-:MAKTNrT  POAVER  OF  THE  TJ.  S. 

meutioned  iu  the  schedules  herein  contained,  the  rates  of  duty  which 
are,  by  tlie  schedules  and  paragraphs,  respectively  prescribed." 

He  refers  to  Fleniinj  vs.  Pwje  (see  §  104,  p.  IGS,  ante),  and  United 
States  vs.  Rice  (see  §  105,  p.  171,  «(i(e),  declaring  that  the  former  was  prop- 
erly dt'cided,  but  that  tlie  views  expressed  by  Chief  Justice  Taney  to 
the  effect  tliat  territory  wiien  acquired  by  treaty  did  not  become  subject 
to  the  custom  hiws  of  the  United  States  prior  to  the  establishment  of  a 
collection  district  by  Congress,  were  mei'e  dicta  and  not  binding  upon 
the  ccmscieuoe  of  the  Court. 

Tlie  opinion  reviews  the  tariff  history  of  the  acquired  possessions  of 
Louisiana,  Florida,  Texas,  California  and  Alaska;  reference  to  the  sub- 
jects discussed  iu  this  opinion  will  be  found  under  the  appropriate  sec- 
tions in  regard  to  the  government  of  territories  (see  §  101,  p.  166,  ante)', 
when  treaties  take  effect  (see  §  383,  p.  127,  Vol.  II);  legislation  and  trea- 
ties (see  §  365,  p.  67,  Vol.  II). 

The  opinion  concludes  as  follows  (182  U.  S.  pp  194,  et  seq.): 

"  From  this  resume  of  the  decisions  of  this  court,  the  instructions  of  the 
executive  departments,  and  the  above  act  of  Congress,  it  is  evident  that, 
from  1803,  the  date  of  Mr.  Gallatin's  letter,  to  the  present  time,  there  is 
not  a  shred  of  authority,  except  the  dictum  in  Fleming  vs.  Page,  (practi- 
cally overruled  in  Cross  vs.  Harrison, )  for  holding  that  a  district  ceded  to 
and  in  possession  of  the  United  States  remains  for  any  purpose  a  foreign 
country.  Both  these  conditions  must  exist  to  produce  a  change  of  na- 
tionality for  revenue  purposes.  Possession  is  not  alone  sufficient,  as  was 
held  iu  Fleming  vs.  Page;  nor  is  a  treaty  ceding  such  territory  sufficient 
without  a  surrender  of  possessions.  (Keene  vs.  McDonough,  8  Pet.  308; 
Pollards  Heirs  \s.  Klbbe,  14Pet.  353,  406;  Hallet  vs.  Hunt,  7  Ala.  882,  899; 
The  Fama,  5  Ch.  Rob.  97.)  The  practice  of  the  executive  departments 
thus  continued  for  more  than  half  a  century,  is  entitled  to  great  weight, 
and  should  not  be  disregarded  nor  overturned  except  for  cogent  reasons, 
and  unless  it  be  clear  that  such  construction  be  erroneous.  ( United  States 
vs.  Johnston,  124  U.  S.  236,  and  other  cases  cited. ) 

"But  were  this  presented  as  an  original  question  we  should  be  im- 
pelled irresistibly  to  the  same  conclusion. 

"  By  article  II,  section  2,  of  the  Constitution,  the  President  is  given 
power,  '  by  and  with  the  advice  and  consent  of  the  Senate,  to  make 
treaties,  provided  that  two-thirds  of  the  Senators  present  concur;'  and 
by  Art.  6, '  tins  Constitution  and  the  laws  of  the  United  States,  which  shall 
be  made  in  pursuance  thereof;  and  all  treaties  made  orwliich  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the  supreme  law 
of  the  land.'  It  will  be  observed  that  no  distinction  is  made  as  to  the 
question  of  supremacy  between  laws  and  treaties,  except  that  both  are 
controlled  by  the  Constitution.  A  law  requires  the  assent  of  both  houses 
of  Congress,  and,  except  in  certain  specified  cases,  the  signature  of  the 
President.  A  treaty  is  negotiated  and  m;ide  by  the  President,  with  the 
concurrence  of  two-thirds  of  the  Senators  present,  but  each  of  them  is 
the  supreme  law  of  the  land. 

"  As  was  said  by  Chief  Justice  Marshall  in  The  Peggy  (1  Cranch,  103, 
110):  'Where  a  treaty  is  the  law  of  the  land,  and  as  such  affects  the 


iNSULAn  CASES  APPENDIX.  471 

i-iglits  of  parties  litigating  in  court,  that  treaty  as  much  binds  those 
rights,  and  is  as  much  to  be  regarded  by  the  court  as  an  act  of  Congress.' 
And  in  Foster  vs.  Neilaon,  (2  Pet.  253,  314, )  he  repeated  this  in  substance: 
'  Our  Constitution  declares  a  treaty  to  be  the  law  of  the  land.  It  is, 
consequently,  to  be  regarded  in  courts  of  justice  as  equivalent  to  an  act 
of  the  legislature,  whenever  it  operates  of  itself  without  the  aid  of  any 
legislative  provision.'  So  in  Whitney  vs.  Bobertson,  (124U.  S.  190):  'By 
the  Constitution  a  treaty  is  placed  on  the  same  footing,  and  made  of  like 
obligation,  with  an  act  of  legislation.  Both  are  declared  by  that  instru- 
ment to  be  the  supreme  law  of  the  land,  and  no  superior  efficacy  is  given 
to  either  over  the  other.  When  the  two  relate  to  the  same  subject,  the 
courts  will  always  endeavor  to  construe  them  so  as  to  give  effect  to  both, 
if  that  can  be  done  without  violating  the  language  of  either;  but  if  the 
two  are  inconsistent,  the  one  last  in  date  will  control  the  other,  provided 
always  that  the  stipulation  of  the  treaty  on  the  subject  is  self-execut- 
ing.' To  the  same  effect  are  the  Cherokee  Tobacco  (11  Wall.  616,),  and 
the  Head  Money  Cases,  (112  U.  S.  580). 

"  One  of  the  ordinary  incidents  of  a  treaty  is  the  cession  of  territory. 
It  is  not  too  much  to  say  it  is  the  rule,  rather  than  the  exception,  that  a 
treaty  of  peace,  following  upon  a  war,  provides  for  a  cession  of  territory 
to  the  victorious  party.  It  was  said  by  Chief  Justice  Marshall  in 
American  Ins.  Co.  vs.  Canter  (1  Pet.  511,  542):  'The  Constitution  con- 
fers absolutely  upon  the  Government  of  the  Union  the  powers  of  mak- 
ingwarandof  making  treaties;  consequently  that  Government  possesses 
the  power  of  acquiring  territory,  either  by  conquest  or  by  treaty.'  The 
territory  thus  acquired  is  acquired  as  absolutely  as  if  the  annexation 
were  made,  as  in  the  case  of  Texas  and  Hawaii,  by  an  act  of  Congress. 

"It  follows  from  this  that  by  the  ratification  of  the  treaty  of  Paris 
the  island  became  territory  of  the  United  States — although  not  an  or- 
ganized territory  in  the  technical  sense  of  the  word. 

"It  is  true  Mr.  Chief  Justice  Taney  held  in  Scott  vs.  Sandford, 
(19  How.  393,),  that  the  territorial  clause  of  the  Constitution  was  con- 
fined, and  intended  to  be  confined,  to  the  territory  which  at  that  time 
belonged  to  or  was  claimed  by  the  United  States,  and  was  within  their 
boundaries,  as  settled  by  the  treaty  with  Great  Britain;  and  was  not 
intended  to  apply  to  territory  subsequently  acquired.  He  seemed  to 
differ  in  this  construction  from  Chief  Justice  Marshall  in  the  American 
&c.  Ins.  Co.  vs.  Canter,  (1  Pet.  511,  542,)  who,  in  speaking  of  Florida  be- 
fore it  became  a  State,  remarked  that  it  continued  to  be  a  territory  of 
the  United  States,  governed  by  the  territorial  clause  of  the  Constitution. 

"But  whatever  be  the  sonrce  of  this  power,  its  uninterrupted  ex- 
ercise by  Congress  for  a  century,  and  the  repeated  declarations  of  this 
court,  have  settled  the  law  that  the  right  to  acquire  territory  involves 
the  right  to  govern  and  dispose  of  it.  That  was  stated  by  ('liief  Justice 
Taney  in  the  Drcd  Scott  case.  In  the  more  recent  case  of  Naiinnal  Bank 
vs.  County  of  Yankton,  (101  U.  S.  129,)  it  was  said  by  Mr.  Cliief  Justica 
Waite  that  Congress  'lias  full  and  complete  legislative  autliority  over 
the  people  of  tlio  territories  and  all  tlie  departments  of  tlie  territorial 
government.     It  may  do  for  the  territories  what  the  people,  under  the 


472  TREATY-IMAKIXG  POWER  OF  THE  U.  S. 

Constitution  of  the  United  States,  may  do  for  the  States.'  Indeed,  it 
is  scarcely  too  much  to  say  that  there  has  not  been  a  session  of  Congress 
since  the  Territory  of  Louisiana  was  piirchased,  that  tliat  body  has  not 
enacted  legislation  based  upon  the  assumed  authority  to  govern  and 
control  the  territories.  It  is  an  authority  which  arises,  not  necessarily 
from  the  territorial  clause  of  the  Constitution,  but  from  the  necessities 
of  the  case,  and  from  the  inability  of  the  States  to  act  upon  the  subject. 
Under  this  power  Congress  may  deal  with  territoiy  acquired  by  treaty; 
may  administer  its  government  as  it  does  that  of  the  District  of  Colum- 
bia; it  may  organize  a  local  territorial  government;  it  may  admit  it  as 
a  State  upon  an  equality  with  other  States;  it  may  sell  its  public  lands 
to  individual  citizens  or  may  donate  them  as  homesteads  to  actual  set- 
tlers. In  short,  when  once  acquired  by  treaty,  it  belongs  to  the  United 
States,  and  is  subject  to  the  disposition  of  Congress. 

"  Territory  thus  acquired  can  remain  a  foreign  country  under  the 
tariff  laws  only  upon  one  of  two  theories:  either  that  the  word  '  foreign' 
applies  to  such  countries  as  were  foreign  at  the  time  the  statute  was 
enacted,  notwithstanding  any  subsequent  change  in  their  condition,  or 
that  they  remain  foreign  under  the  tariff  laws  until  Congress  has  form- 
ally embraced  them  within  the  customs  union  of  the  States. 

"The  first  theory  is  obviously  untenable.  While  a  statute  is  pre- 
sumed to  speak  from  the  time  of  its  enactment,  it  embraces  all  such 
persons  or  things  as  subsequently  fall  within  its  scope,  and  ceases  to 
apply  to  such  as  thereafter  fall  without  its  scope.  Thus,  a  statute  for- 
bidding the  sale  of  liquors  to  minors  applies  not  only  to  minors  in  exist- 
ence at  the  time  the  statute  was  enacted,  but  to  all  who  are  subsequently 
born;  and  ceases  to  apply  to  such  as  thereafter  reach  their  majority. 
So,  when  the  Constitution  of  the  United  States  declares  in  Art.  I,  sec.  10, 
that  the  States  shall  not  do  certain  things,  this  declaration  operates  not 
only  upon  the  thirteen  original  States,  but  upon  all  which  subsequently 
become  such;  and  when  Congress  places  certain  i-estrictions  upon  the 
powers  of  a  territorial  legislature,  such  restrictions  cease  to  operate  the 
moment  such  territory  is  admitted  as  a  State. 

"By  parity  of  reasoning  a  country  ceases  to  be  foreign  the  instant  it 
becomes  domestic.  So,  too,  if  Congress  saw  fit  to  cede  one  of  its  newly 
acquired  territories  (even  assuming  that  it  had  the  right  to  do  so)  to  a 
foreign  power,  there  can  be  no  doubt  that  from  tl^e  day  of  such  cession 
and  the  delivery  of  possession,  such  territory  would  become  a  foreign 
country,  and  be  reinstated  as  such  under  the  tariff  laws.  Certainly  no 
act  of  Congress  would  be  necessary  in  such  case  to  declare  that  the  laws 
of  the  United  States  had  ceased  to  apply  to  it. 

"  The  theory  that  a  country  remains  foreign  with  respect  to  the  tariff 
laws  until  Congress  has  acted  by  embracing  it  within  the  customs  union, 
presupposes  that  a  country  may  be  domestic  for  one  purpose  and  foreign 
for  another.  It  may  undoubtedly  become  necessary  for  the  adequate 
administration  of  a  domestic  territory  to  pass  a  special  act  providing 
the  proper  machinery  and  officers,  as  the  President  would  have  no  au- 
thority, except  under  the  war  power,  to  administer  it  himself;  but  no 
act  is  necessary  to  make  it  domestic  territory  if  once  it  has  been  ceded 


EsrSULAR  CASES  APPENDIX.  473 

to  the  United  States.  We  expi'ess  no  opinion  as  to  whether  Congress  is 
bound  to  appropriate  the  money  to  pay  for  it.  This  has  been  much  dis- 
cussed by  writers  on  constitutional  law,  but  it  is  not  necessary  to  con- 
sider it  in  tills  case,  as  Cougress  made  prompt  appropriation  of  the 
money  stipulated  in  the  treaty.  This  theory  also  presupposes  tliat 
territory  may  be  held  indefinitely  by  the  United  States;  that  it  may  be 
treated  in  every  particular,  except  for  tariff  puri)oses,  as  domestic  terri- 
tory; that  laws  may  be  enacted  and  enforced  by  officers  of  the  United 
States  sent  there  for  that  purpose ;  that  insurrections  may  be  suppressed, 
wars  carried  on,  revenues  collected,  taxes  imposed;  in  short  that  every- 
thing may  be  done  which  a  government  can  do  within  its  own  bound- 
aries, and  yet  that  the  territory  may  still  remain  a  foreign  country. 
That  this  state  of  things  may  contiuue  for  years,  for  a  century  even,  but 
that  until  Congress  enacts  otherwise,  it  still  remains  a  foreign  country. 
To  hold  that  this  can  be  done  as  matter  of  law  we  deem  to  be  pure 
judicial  legislation.  •  We  find  no  warrant  for  it  in  the  Constitution  or 
in  the  powers  conferred  upon  this  court.  It  is  true  the  nonaction  of 
Congress  may  occasion  a  temporary  inconvenience  ;  but  it  does  not 
follow  that  courts  of  justice  are  authorized  to  remedy  it  by  inverting 
the  ordinary  meaning  of  words. 

"  If  an  act  of  Congress  be  necessary  to  convert  a  foreign  country  into 
domestic  territory,  the  question  at  once  suggests  itself  what  is  the  char- 
acter of  the  legislation  demanded  for  this  purpose  ?  Will  an  act  appro- 
priating money  for  its  purchase  be  sufficient?  Apparently  not.  Will  an 
act  appropriating  the  duties  collected  upon  imports  to  and  fruin  sucli 
country  for  the  benefit  of  its  government  be  sufficient?  Apparently  not. 
Will  acts  making  appropriations  for  its  postal  service,  for  the  establish- 
ment of  lighthouses,  for  the  maintenance  of  quarantine  stations,  for 
erecting  public  buildings,  have  that  effect?  AVill  an  act  establishing  a 
complete  local  government,  but  with  the  reservation  of  a  right  to  collect 
duties  upon  commerce,  be  adequate  for  that  purpose?  None  of  these, 
nor  altogether,  will  be  sufficient,  if  the  contention  of  the  Government  be 
sound,  since  acts  embracing  all  these  provisions  have  been  passed  in 
connection  with  Porto  Rico,  and  it  is  insisted  that  it  is  still  a  foieign 
country  within  the  meaning  of  the  tariff  laws.  We  are  unable  to  acqui- 
esce in  this  assumption  that  a  territory  may  be  at  the  same  time  both 
foreign  and  domestic. 

"  A  single  further  point  remains  to  be  considered:  It  is  insisted  that 
an  act  of  Congress,  passed  March  24,  1900,  (31  Stat.  151,)  applying  for 
the  benefit  of  Porto  Rico  the  amount  of  the  customs  revenue  received 
on  importations  by  the  United  States  from  Porto  Rico  since  the  evacua- 
tion of  Porto  Rico  by  the  Spanish  forces,  October  18,  1808,  to  January  1, 
1900,  together  with  any  furtlier  customs  revenues  collected  on  importa- 
tions from  Porto  Rico  since  January  1,  1900,  or  that  shall  hereafter  be 
collected  under  existing  law,  is  a  recognition  by  Congress  of  the  riglit 
to  collect  such  duties  as  upon  importations  from  a  foreign  country,  and  a 
recognition  of  the  fact  that  Porto  Rico  continued  to  be  a  foreign  country 
until  Congress  embraced  it  within  the  customs  union.  It  may  be  seri- 
ously questioned  whether  this  is  anything  more  than  a  recognition  of 


474  TREATY-MA KTNO   I'OWKlt  ov  THE  U.  S. 

the  fact  that  there  were  moneys  in  the  Treasury  not  subject  to  existing 
appropriation  laws.  Perhaps  we  may  go  farther  and  say  that,  so  far 
as  these  duties  were  paid  voluntarily  and  without  protest,  the  legality 
of  the  payment  was  intended  to  be  recognized;  but  it  can  clearly  have 
no  retroactive  effect  as  to  moneys  theretofore  paid  under  protest,  fur 
which  an  action  to  recover  back  liad  already  been  brought.  As  the  ac- 
tion in  tliis  case  was  brought  March  13,  1900,  eleven  days  before  the  act 
was  passed,  the  right  to  recover  the  money  sued  for  could  not  be  taken 
away  by  a  subsequent  act  of  Congiess.  Plaintiffs  sue  in  assumpsit  for 
money  which  the  collector  has  in  his  hand  justly  and  equitably  belong- 
ing to  them.  To  say  that  Congress  could  by  a  subsequent  act  deprive 
them  of  the  right  to  prosecute  this  action,  would  be  beyond  this  power. 
In  any  event,  it  should  not  be  interpreted  so  as  to  make  it  retroactive. 
(KeaneWs  Petition,  24  N.  H.  139;  Alter' s  Appeal,  67  Penn.  St.  341;  Nor- 
7nan  vs.  Heist,  5  W.  &  S.  171;  Donavanvfi.  Pitcher,  bS  A\a,.  411;  PalaireVs 
Appeal,  67  Penn.  St.  479;  State  vs.  Warren,  28  Md.  338.) 

"  We  are  therefore  of  opinion  that  at  the  time  these  duties  were  levied 
Porto  Rico  was  not  a  foreign  country  within  the  meaning  of  the  tariff 
laws  but  a  territory  of  the  United  States,  that  the  duties  were  illegally 
exacted  and  that  the  plaintiffs  are  entitled  to  recover  them  back. 

"  The  judgment  of  the  Circuit  Court  for  the  Southern  District  of  New 
York  is  therefore  reversed  and  the  case  remanded  to  that  court  for 
further  proceedings  in  consonance  with  this  opinion." 

OTHER   OPINIONS   IN   DE   LIMA   CASE. 

Chief  Justice  Fuller  and  Justices  Harlan,  Brewer  and  Peckham 
concurred;  Mr.  Justice  McKenna  wrote  a  dissenting  opinion  in  which 
Justice  Shiras  and  White  concurred;  Mr.  Justice  Gray  wrote  a  sep- 
arate dissenting  opinion  which  was  as  follows  (182  U.  S.  p.  220) :  "  I  am 
compelled  to  dissent  from  the  judgment  in  this  case.  It  appears  to  me 
irreconcilable  with  the  unanimous  opinion  of  this  court  in  Fleming  vs. 
Page,  9  How.  603,  and  with  the  opinions  of  the  majority  of  the  Justices 
in  the  case,  this  day  decided,  of  Downes  vs.  Bidioell.''' 

In  his  dissenting  opinion  Mr.  Justice  McKenna  (182  U.  S.  pp.  200, 
et  seq.)  also  refers  at  length  to  the  cases  of  Fleming  vs.  Page,  United 
States  vs.  Bice,  and  Cross  vs.  Harrison,  and  reaches  a  conclusion  that 
Porto  Rico  did  not  become  territory  of  the  United  States  by  the  mere 
effect  of  the  treaty  and  its  ratification,  and  that  congressional  action 
was  necessary  before  it  could  become  incorporated  as  a  part  of  the  ter- 
ritory of  the  United  States  and  thereby  cease  to  be  foreign  so  far  as 
the  revenue  laws  of  the  United  States  were  concerned. 

IV. 

Samuel  B.  Downes,  doing  Business  under  the  Firm  Name  of  S.  B. 
Downes  &  Co.,  Plaintiffs  in  Error,  vs.  George  R.  Bidwell. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York. 


rxSULAR  CASES  APPENDIX.  475 

Transcript  of  Record  filed  December  11,  1900,  No.  507  (Ins.  Cas.  Rec. 
p.  721). 

For  Downes  &  Co. : 

CouDEKT  Bkos.,  71  Broadway,  New  York  City.  Fbebekick  R.  Cou- 
DERT,  Jr.,  and  Paul  Fuller,  for  counsel. 

For  the  defendant  (collector): 

In  the  Circuit  Court  Henry  L.  Burnett,  United  States  District  At- 
torney for  the  Southern  District  of  New  York. 

In  the  Supreme  Court  John  W,  Griggs,  Attorney  General  of  the 
United  States,  aud  John  K.  Richards,  Solicitor  General. 

The  action  was  commenced  in  the  Circuit  Court  of  the  United  States 
for  the  Southern  District  of  New  York  by  the  plaiutiff  against  the  de- 
fendant as  collector  of  the  port  of  New  York  to  recover  back  duties 
exacted  and  paid  under  protest  upon  certain  oranges  consigned  to  the 
plaintiff  to  New  York  and  brought  thither  from  the  port  of  San  Juan 
in  tlie  island  of  Porto  Rico  during  the  month  of  November,  1900,  after 
the  passage  of  the  act  temporarily  providing  a  civil  government  and 
revenues  for  the  Island  of  Porto  Rico,  known  as  the  "  Foraker  act." 
(31  U.  S.  Stat,  at  L.  p.  77,  approved  April  12,  1899.) 

The  defendant  demurred  for  want  of  jui'isdiction  in  the  court,  and 
for  insufficiency  of  its  averments  in  the  complaint,  the  Circuit  Court 
sustained  the  demurrer  and  dismissed  the  complaint  pro /"orma ;  (Ins. 
Cas.  Rec.  725). 

The  plaintiff  sued  out  in  the  Supreme  Court  of  the  United  States 
a  writ  of  error.  The  plaintiff  in  error  made  a  motion  to  advance  the 
cause  which  was  granted  (Ins.  Cas.  Rec.  p.  731). 

Two  briefs  were  filed  in  the  Supreme  Court  by  F.  R.  Coudert,  Jr., 
and  Paul  Fuller.  (Ins.  Cas.  Rec.  pp.  733-754,  and  for  analysis  and  list 
of  authorities  cited,  see  Table  of  Contents,  Ins.  Cas.  Rec.  pp.  xxvii, 
xxviii. )  The  briefs  for  the  United  States  filed  by  the  Attorney  Gen- 
eral and  the  Solicitor  General  were  the  same  as  those  filed  in  De  Lima 
vs.  Bidwdl.  (Ins.  Cas.  Rec.  contra,  p  754,  and  see  p.  469,  ante  of  this  Ap- 
pendix.) 

The  cases  Avere  argued  January  8  and  9,  1901,  simultaneously  with 
the  De  Lima  and  other  cases. 

The  merchandise  on  which  the  duties  were  paid  were  not  imported 
until  November  20;  the  case  was  argued  in  the  Supreme  Court  of  the 
United  States  in  less  than  two  months  after  the  cause  of  action  arose. 

The  Supreme  Court  of  the  United  States  affirmed  the  judgment  of  the 
Circuit  Court  on  the  ground  "  that  the  Island  of  Porto  Rico  is  a  terri- 
tory appurtenant  and  belonging  to  the  United  States,  but  not  a  part  of 
the  United  States  within  the  revenue  clauses  of  the  constitution;  that 
the  Foraker  act  is  constitutional,  so  far  as  it  imposed  duties  on  imports 
from  such  island,  and  that  the  plaintiff  cannot  recover  back  the  duties 
exacted  in  this  case." 


47t»  TEEATY-^EAKIXG  POWER  OF  THE  V.  S. 

There  is  in  this  case  apparently  no  majority  opinion  of  the  court,  tlie 
docket  stating  that  "  Mr.  Justice  Brown  announced  the  conclusion  and 
judgment  of  the  court."  (182  U.  S.  Kep.  247.)  None  of  the  judges 
concurred,  but  Mr.  Justice  White  delivered  an  opinion  concurring  in 
result  (182  U.  S.  Kep.  287),  in  which  Justices  Shikas  and  McKenna 
joined;  Mr.  Justice  Gkay  also  concurred  with  Mr.  Justice  White  with 
a  brief  supplementary  memorandum  as  to  his  views.  (182  U.  S.  Rep. 
344.)  Although  the  processes  of  reasoning  by  which  the  result  is 
reached  in  the  respective  opinions  of  Mr.  Justice  Brown  and  Mi-.  Jus- 
tice White  are  in  many  respects  diametrically  opposed  to  each  other,  as 
the  same  conclusion  was  reached  by  five  justices  the  judgment  became 
that  of  the  Court. 

Chief  Justice  Fuller  delivered  a  dissenting  opinion  in  which  Jus- 
tices Harlan,  Brewer  and  Peckham  concurred.  (182  U.  S.  Rep.  347.) 
Mr.  Justice  Harlan  also  delivered  a  separate  dissenting  opinion.  (182 
U.  S.  Rep.  375.) 

OPINION  BROWN,  J.,  IN  DOWNES  VS.  BIDWELL. 

In  all  the  opinions  the  history  of  the  congressional  government  of  the 
territories  is  discussed  and  numerous  cases  are  cited.  Mr.  Justice  Brown 
holds,  as  in  the  De Lima  case,  that  Porto  Rico  became  territory  of  the 
United  States  on  the  ratification  of  the  treaty;  he  also  holds  that  Con- 
gress has  plenary  power  to  govern  all  the  territories,  and  in  doing  so  is 
not  bound  by  the  limitations  affecting  congressional  action  in  regard  to 
States,  so  far  as  the  uniformity  of  duties  and  imports  is  concerned. 

In  regard  to  congressional  government  of  the  territories,  after  citing 
numerous  cases,  he  saj^s  (182  U.  S.  Rep.  270),  "Eliminating,  then,  from 
the  opinions  of  tliis  court  all  expressions  unnecessary  to  the  disposition 
of  the  particular  case,  and  gleaning  therefrom  the  exact  point  decided 
in  each,  the  following  propositions  may  be  considered  as  established: 

"  1.  That  the  District  of  Columbia  and  the  territories  are  not  States, 
within  the  judicial  clause  of  the  Constitution  giving  jurisdiction  in  cases 
between  citizens  of  different  States; 

"2.  That  territories  are  not  States,  within  the  meaning  of  Revised 
Statutes,  sec.  709,  permitting  writs  of  error  from  this  court  in  cases 
where  the  validity  of  a  State  statute  is  drawn  in  question; 

"3.  That  the  District  of  Columbia  and  the  territories  are  States,  as 
that  word  is  used  in  treaties  with  foreign  powers,  with  respect  to  the 
ownership,  disposition  and  inheritance  of  property; 

"4.  That  the  territories  are  not  within  the  clause  of  the  Constitution 
providing  for  the  creation  of  a  Supreme  Court  and  such  inferior  courts 
as  Congress  may  see  fit  to  establish ; 

"5.  That  the  Constitution  does  not  apply  to  foreign  couatries  or  to 
trials  therein  conducted,  and  that  Congress  may  lawfully  provide  for 
such  trials  before  consular  tribunals,  without  the  intervention  of  a  grand 
or  petit  jury; 

'•6.  That  where  the  Constitution  has  been  once  foriually  extended  by 
Congress  to  territories,  neitiier  Congress  nor  the  territorial  legislature 
can  enact  laws  inconsistent  therewith." 


INSULAR  CASES  APPENDIX.  477 

The  opinion  then  refers  to  the  Dred  Scott  case  (19  Howard,  393), 
stating  that  it  is  not  of  great  authority  and  that  much  of  the  opinion, 
which  otherwise  might  be  applicable  to  this  case,  was  obita  dicta. 
Further  commentiug  upon  it  he  says:  "It  must  be  admitted  that  this 
case  is  a  strong  authority  in  favor  of  the  plaintiff,  and  if  the  opinion  of 
the  chief  justice  be  taken  at  its  full  value  it  is  decisive  in  his  favor.  We 
are  not,  however,  bound  to  overlook  the  fact  that,  before  the  chief 
justice  gave  utterance  to  his  opinion  upon  the  merits,  he  had  already 
disposed  of  the  case  adversely  to  the  plaintitf  upon  the  question  of 
jurisdiction,  and  that,  in  view  of  the  excited  political  condition  of  the 
country  at  the  time,  it  is  unfortunate  that  he  felt  compelled  to  discuss 
the  question  upon  the  merits,  particularly  so  in  view  of  the  fact  that  it 
involved  a  ruling  that  an  act  of  Congress,  which  had  been  acquiesced  in 
for  thirty  years,  v/as  declared  unconstitutional.  It  would  appear  from 
the  opinion  of  Mr.  Justice  Wayne  that  the  real  reason  for  discussing 
these  constitutional  questions  was  that  '  there  had  become  such  a  dif- 
ference of  opinion'  about  them  'that  the  peace  and  harmony  of  the 
country  required  the  settlement  of  them  by  judicial  decision.'  (p.  455.) 
The  attempt  was  not  successful.  It  is  sufficient  to  say  that  the  country 
did  not  acquiesce  in  the  opinion,  and  that  the  civil  war,  which  shortly 
thereafter  followed,  produced  such  changes  in  judicial,  as  well  as  public, 
sentiment,  as  to  seriously  impair  the  authority  of  this  case." 

In  regard  to  the  right  to  govern  territory  the  opinion  cites  §§  905  and 
906  of  the  Revised  Statutes  of  the  United  States,  and  §  6  of  the  Con- 
stitution; declares  that  uniformity  as  decided  in  Know  lion  vs.  Moore, 
in  178  U.  S.  41,  means  geographical  uniformity,  and  that  the  words 
"  throughout  the  United  States  "  are  considered  indistinguishable  from 
the  words  "among  or  between  the  several  states"  and  that  the  pro- 
hibitions of  the  Constitution  "  were  intended  to  apply  only  to  commerce 
between  ports  of  the  several  states  as  then  existed  or  should  thereafter 
be  admitted  to  the  Union."  The  opinion  concluded  as  follows  ( 182  U.  S. 
pp.  279,  et  seq. )  : 

"We  are  also  of  opinion  that  the  power  to  acquire  territory  by  treaty 
implies  not  only  the  power  to  govern  such  territory,  but  to  prescribe 
upon  what  terms  the  United  States  will  receive  its  inhabitants,  and 
what  their  status  shall  be  in  what  Chief  Justice  Marshall  termed  the 
'American  Empire.'  There  seems  to  be  no  middle  ground  between 
this  position  and  the  doctrine  that  if  their  inhabitants  do  not  become, 
immediately  upon  annexaticm,  citizens  of  the  United  States,  their  chil- 
dren thereafter  born,  whether  savages  or  civilized,  are  such,  and 
entitled  to  all  the  rights,  privileges  and  immunities  of  citizens.  If  such 
be  their  status,  the  consequences  will  be  extremely  serious.  Indeed,  it 
is  doubtful  if  Congress  would  ever  assent  to  the  annexation  of  territory 
upon  the  condition  that  its  inhabitants,  however  foreign  they  may  be 
to  our  habits,  traditions  and  modes  of  life,  shall  become  at  once  citi- 
zens of  the  United  States.  In  all  its  treaties  hitherto  the  treaty-making 
power  has  made  special  provision  for  this  subject;  in  the  cases  of  Lou- 
isiana and  Florida,  by  stipulating  that  'the  inhabitants  shall  bo  incor- 
porated into  the  Union  of  the  United  States  and  admitted  as  soon  as 


478  TREATY-]\LA.KING  TOWER  OF  THE  U.  S. 

possible  ...  to  the  enjoyment  of  all  rights,  advantages  and  immu- 
nities of  citizens  of  the  United  States;'  in  the  case  of  Mexico,  that  they 
shouUl  'be  incorporated  into  the  Union,  and  be  admitted  at  the  proper 
time,  (to  be  judged  of  by  the  Congress  of  the  United  States,)  to  the  en- 
joyment of  all  tlie  rights  of  the  citizens  of  the  United  States;'  in  the 
case  of  Alaska,  that  the  inluibitants  who  remain  three  years,  '  with  the 
exception  of  uncivilized  native  tribes,  shall  be  admitted  to  the  enjoy- 
ment of  all  tiie  rights,'  etc. ;  and  in  the  case  of  Porto  Kico  and  the  Phil- 
ippines, '  that  the  civil  rights  and  political  status  of  the  native  inhabi- 
tants .  .  .  shall  be  determined  by  Congress.'  In  all  these  cases 
there  is  an  implied  denial  of  the  right  of  the  inhabitants  to  American  cit- 
izenship until  Congress  by  further  action  shall  signify  its  assent  thereto. 
Grave  apprehensit)us  of  danger  are  felt  by  many  eminent  men — a  fear 
lest  an  unrestrained  possession  of  power  on  the  part  of  Congress  may  lead 
to  unjust  and  oppressive  legislation,  in  which  the  natural  rights  of  terri- 
tories, or  their  inhabitants,  may  be  engulfed  in  a  centralized  despotism. 
These  fears,  however,  find  no  justitication  in  the  action  of  Congress  in 
the  past  century,  nor  in  the  conduct  of  the  British  Parliament  toward 
its  outlying  possessions  since  the  American  revolution.  Indeed,  in 
the  only  instance  in  which  this  court  has  declared  an  act  of  Congress 
unconstitutional  as  trespassing  upon  the  rights  of  territories,  (the  Mis- 
souri Compromise),  such  action  was  dictated  by  motives  of  humanity 
and  justice,  and  so  far  commanded  popular  approval  as  to  be  embodied 
in  the  Thirteenth  Amendment  to  the  Constitution.  There  are  certain 
principles  of  natural  justice  inherent  in  the  Anglo-Saxon  character  which 
need  no  expression  in  constitutions  or  statutes  to  give  them  eiJect  or  to 
secure  dependencies  against  legislation  manifestly  hostile  to  their  real 
interests.  Even  in  the  Foraker  act  itself,  the  constitutionality  of  which 
is  so  vigorously  assailed,  power  was  given  to  the  legislative  assembly  of 
Porto  Kico  to  repeal  the  very  tariff  in  question  in  this  case,  a  power 
it  has  not  seen  fit  to  exercise.  The  words  of  Chief  Justice  Mar- 
shall in  Gibbons  vs.  Odyen,  (9  Wheat.  1,)  with  respect  to  the  power  of 
Congress  to  regulate  commerce,  are  pertinent  in  this  connection:  'This 
power,'  said  he,  'like  all  others  vested  in  Congress,  is  complete  in  it- 
self, and  may  be  exercised  to  its  utmost  extent,  and  acknowledges 
no  limitations  other  than  are  prescribed  in  the  Constitution.  .  .  . 
The  wisdom  and  discretion  of  Congress,  their  identity  with  the  people, 
and  the  influence  which  their  constituents  possess  at  elections  are  in 
this,  as  in  many  other  instances,  as  that,  for  example,  of  declaring  wai-, 
the  sole  restraints  on  which  they  have  relied  to  secure  them  from  its 
abuse.  They  are  the  restraints  on  which  the  people  most  often  rely  on 
solely  in  all  representative  governments.'  "  Citing  Johnson  vs.  Mcin- 
tosh, 8  Wheat.  543,  589,  and  Knowlton  vs.  Moore,  178  U.  S.  41,  109,  with 
quotations  therefrom  at  length. 

'•  It  is  obvious  that  in  the  annexation  of  outlying  and  distant  posses- 
sions grave  questions  will  arise  from  differences  of  race,  habits,  laws  and 
customs  of  the  people,  and  from  differences  of  soil,  climate  and  produc- 
tion, which  may  require  action  on  the  part  of  Congress  that  will  be 
quite  unnecessary  in  the  annexation  of  contiguous  territory  inhabited 


INSULAR  CASES  APPENDIX.  479 

only  by  people  of  the  same  race,  or  by  scattered  bodies  of  native  In- 
dians. 

"We  suggest,  without  intending  to  decide,  that  there  may  be  a  dis- 
tinction between  certain  natural  rights,  enforced  in  the  Constitution  by 
prohibitions  against  interference  with  them,  and  what  may  be  termed 
artificial  or  remedial  riglits,  which  are  peculiar  to  our  own  system  of 
jurisprudence.  Of  the  former  class  are  the  rights  to  one's  own  reli- 
gious opinion  and  to  a  public  expression  of  thera,  or,  as  sometimes  said, 
to  worship  God  according  to  the  dictates  of  one's  own  conscience; 
the  right  to  personal  liberty  and  individual  property;  to  freedom  of 
speecli  and  of  the  press;  to  free  access  to  courts  of  justice,  due  process 
of  law  and  to  an  equal  protection  of  the  laws;  to  immunities  from  un- 
reasonable searches  aud  seizures,  as  well  as  cruel  and  unusual  punish- 
ments; and  to  such  otlier  immunities  as  are  indispensable  to  a  free 
government.  Of  the  latter  class,  are  the  rights  to  citizenship,  to  suffrage 
(Minor  vs.  Happersett,  21  Wall.  162,)  and  to  the  particular  methods 
of  procedure  pointed  out  in  the  Constitution,  which  are  peculiar  to 
Anglo-Saxon  jurisprudence,  and  some  of  wliich  liave  already  been  held 
by  the  States  to  be  unnecessary  to  tlie  proper  protection  of  individuals. 

"  Wliatever  may  be  finally  decided  by  the  American  people  as  to  the 
status  of  these  islands  and  their  inhabitants — whether  they  shall  be  in- 
troduced into  the  sisterhood  of  States  or  be  permitted  to  form  independ- 
ent governments — it  does  not  follow  that,  in  the  meantime,  awaiting 
that  decision,  the  people  are  in  the  matter  of  personal  rights  unpro- 
tected by  the  provisions  of  our  Constitution,  and  subject  to  the  merely 
arbitrary  control  of  Congress.  Even  if  regarded  as  aliens,  they  are  en- 
titled under  the  principles  of  the  Constitution  to  be  protected  in  life, 
liberty  and  property.  This  has  been  frequently  held  by  this  Court  in 
respect  to  the  Chinese,  even  when  aliens,  not  possessed  of  the  political 
rights  of  citizens  of  the  United  States.  (Yicic  Wo  vs.  Hopkins,  118 
U.  S.  356;  Fong  Yue  Ting  vs.  United  States,  149  U.  S.  698;  Lem  Moon 
Sing  vs.  United  States,  158  U.  S.  538,  547;  Wong  Wing  vs.  United  States, 
163  U.  S.  228.)  We  do  not  desire,  however,  to  anticipate  the  difficulties 
which  would  naturally  arise  in  this  connection,  but  merely  to  disclaim 
any  intention  to  hold  that  the  inhabitants  of  these  territories  are  sub- 
ject to  an  unrestrained  power  on  the  part  of  Congress  to  deal  with  them 
upon  the  theory  that  they  have  no  rights  which  it  is  bound  to  respect. 

"  Large  powers  must  necessarily  be  intrusted  to  Congress  in  dealing 
with  tliese  problems,  and  we  are  bound  to  assume  that  they  will  be 
judicially  exercised.  That  these  powers  may  be  abused  is  possible. 
But  the  same  may  be  said  of  its  powers  under  tlie  Constitution  as  well 
as  outside  of  it.  Human  wisdom  has  never  devised  a  form  of  govern- 
ment so  perfect  that  it  may  not  be  perverted  to  bad  purposes.  It  is 
never  conclusive  to  argue  against  the  possession  of  certain  powers  from 
possible  abuse  of  them.  It  is  safe  to  say  that  if  Congress  should  venture 
upon  legislation  manifestly  dictated  by  selfish  interests,  it  would  receive 
quick  rebuke  at  the  hands  of  the  people.  Indeed,  it  is  scarcely  possi- 
ble that  Congress  could  do  a  greater  injustice  to  these  islands  than 
would  be  involved  in  holding  that  it  could  not  impose  upon  the  States 


4S0  TBEATY-IVIAKING  POWER  OF  THE  U.  S. 

taxes  and  excises  witliout  extending  the  same  taxes  to  tliera.  Such  re- 
quirement would  bring  them  at  once  within  our  internal  reveuue  sys- 
tem, inclnding  stamps,  licenses,  excises  and  all  the  paraphernalia  of  that 
system,  and  applying  it  to  territories  which  have  had  no  experience  of 
this  kind,  and  where  it  would  prove  au  intolerable  burden. 

"This  subject  was  carefully  ctmsidered  by  the  Senate  committee  in 
charge  of  the  Foraker  bill,  which  found,  after  an  examination  of  the 
facts,  that  property  in  Porto  Kico  was  already  burdened  with  a  private 
debt  amounting  probably  to  $oO,000,000;  that  no  system  of  property 
taxation  was  or  ever  had  been  in  force  in  the  island,  and  that  it  probably 
would  require  two  years  to  inaugurate  one  and  secure  returns  from 
it;  that  the  revenues  had  always  been  chiefly  raised  by  duties  on  im- 
ports and  exports,  and  that  our  internal  revenue  laws,  if  applied  in  that 
island,  would  prove  oppressive  and  ruinous  to  many  people  and  inter- 
ests; that  to  undertake  to  collect  our  heavy  internal  revenue  tax,  far 
heavier  than  Spain  ever  imposed  upon  their  products  aud  vocations, 
would  be  to  invite  violations  of  the  law  so  innumerable  as  to  make 
prosecutions  impossible,  and  to  almost  certainly  alienate  and  destroy 
the  friendship  and  good  will  of  that  peoj^le  for  the  United  States. 

"  In  passing  upon  the  questions  involved  in  this  and  kindred  cases,  we 
ought  not  to  overlook  the  fact  that,  while  the  Constitution  was  intended 
to  establish  a  permanent  form  of  government  for  the  States  which 
should  elect  to  take  advantage  of  its  conditions,  and  continue  for  an 
indefinite  future,  the  vast  possibilities  of  that  future  could  never  have 
entered  the  mind  of  its  framers.  The  States  had  but  recently  emerged 
from  a  war  with  one  of  the  most  powerful  nations  of  Europe;  were  dis- 
heartened by  the  failure  of  the  confederac}%  and  were  doubtful  as  to  the 
feasibility  of  a  stronger  uniou.  Their  ten  itory  was  ccmfined  to  a  narrow 
strip  of  land  on  the  Atlantic  coast  from  Canada  to  Florida,  with  a  some- 
what indefinite  claim  to  territory  beyond  the  Alleghenies,  where  their 
sovereignty  was  disputed  by  tribes  of  hostile  Indians  supported,  as  was 
popularly  believed,  by  the  British,  who  had  never  formally  delivered 
possession  under  the  treaty  of  peace.  The  vast  territory  beyond  the 
Mississippi,  which  formerly  had  been  claimed  by  France,  since  1762  had 
belonged  to  Spain,  still  a  powerful  nation,  and  the  owner  of  a  great  part 
of  the  Western  Hemisphere.  Under  these  circumstances  it  is  little 
wonder  that  the  question  of  annexing  these  territories  was  not  made  a 
subject  of  debate.  The  difficulties  of  bringing  about  a  union  of  States 
were  so  great,  the  objections  to  it  seemed  so  formidable,  that  the  whole 
thought  of  the  convention  centered  upon  surmounting  these  obstacles. 
The  question  of  territories  was  dismissed  with  a  single  clause,  appar- 
ently applicable  only  to  the  territories  then  existing,  giving  Congress 
the  power  to  govern  and  dispose  of  them. 

"  Had  the  acquisition  of  other  territories  been  contemplated  as  a  pos- 
sibility, could  it  have  been  foreseen  that,  within  little  more  than  one 
hundred  years,  we  were  destined  to  acquire  not  only  the  whole  of  the 
vast  region  between  the  Atlantic  and  Pacific  Oceans,  but  the  Russian 
possessions  in  America  and  distant  islands  in  the  Pacific,  it  is  incred- 
ible that  no  provision  should  have  been  made  for  them,  and  the  ques- 


INSULAR  CASES  APPENDIX.  481 

tion  of  whether  the  Constitution  should  or  should  not  extend  to  them 
had  been  definitely  settled.  If  it  be  once  conceded  that  we  are  at  lib- 
erty to  acquire  foreign  territory,  a  presumption  arises  that  our  power 
with  respect  to  such  territories  is  the  same  power  which  other  nations 
have  been  accustomed  to  exercise  witli  respect  to  territories  acquired 
by  them.  If,  in  limiting  the  power  which  Congress  was  to  exercise 
within  the  United  States,  it  was  also  intended  to  limit  it  with  regard  to 
such  territories  as  the  people  of  the  United  States  should  thereafter 
acquire,  such  limitations  should  have  been  expressed.  Instead  of  that, 
we  find  the  Constitution  speaking  only  to  States,  except  in  the  territo- 
rial clause,  which  is  absolute  in  its  terms,  and  suggestive  of  no  limita- 
tions upon  the  power  of  Congress  in  dealing  with  them.  The  States 
could  only  delegate  to  Congress  such  powers  as  they  themselves  pos- 
sessed, and  as  they  had  no  power  to  acquire  new  territory  they  had 
none  to  delegate  in  that  connection.  The  logical  inference  from  this 
is,  that  if  Congress  had  power  to  acquire  new  territory,  which  is  con- 
ceded, that  i^ower  was  not  hampered  by  the  constitutional  provisions. 
If,  upon  the  other  hand,  we  assume  that  the  territorial  clause  of  the 
Constitution  was  not  intended  to  be  restricted  to  such  territory  as  the 
United  States  then  possessed,  there  is  nothing  in  the  Constitution  to 
indicate  that  the  power  of  Congress  in  dealing  with  them  was  intended 
to  be  restricted  by  any  of  the  other  provisions. 

*'  There  is  a  provision  that  '  new  States  may  be  admitted  by  the  Con- 
gress into  this  Union.'  These  words,  of  course,  carry  the  Constitution 
with  them,  but  nothing  is  said  regarding  the  acquisition  of  new  terri- 
tories or  the  extension  of  the  Constitution  over  them.  The  liberality 
of  Congress  in  legislating  the  Constitution  into  all  our  contiguous  terri- 
tories has  undoubtedly  fostered  the  impression  that  it  went  there  by  its 
own  force,  but  there  is  nothing  in  the  Constitution  itself,  and  little  in  the 
interpretation  put  upon  it,  to  confirm  that  impression.  There  is  not 
even  an  analogy  to  the  provisions  of  an  ordinary  mortgage  for  its  attach- 
ment to  after-acquired  property,  without  which  it  covers  only  property 
existing  at  the  date  of  the  mortgage.  In  short,  there  is  absolute  silence 
upon  the  subject.  The  executive  and  legislative  departments  of  the 
government  have  for  more  than  a  century  interpreted  this  silence  as 
precluding  the  idea  that  the  Constitution  attached  to  these  territories  as 
soon  as  acquired,  and  unless  such  interpretation  be  manifestly  contrary 
to  the  letter  or  spirit  of  the  Constitution,  it  should  be  followed  by  the 
judicial  department.  (Cooley's  C(mst.  Lim.,  sees.  81  to  85;  Lit.hor/raphic 
Co.  vs.  Sarony,  111  U.  S.  53,  57;  Field  vs.  Clark,  143,  U.  S.  649,  ()91.) 

"Patriotic  and  intelligent  men  may  differ  widely  as  to  the  desirable- 
ness of  this  or  that  acquisition,  but  this  is  solely  a  political  question. 
We  can  only  consider  this  aspect  of  the  case  so  far  as  to  say  that  no  con- 
struction of  tlie  Constitution  should  be  adopted  which  would  prevent 
Congress  from  considering  eiich  case  upon  its  merits,  unless  the  language 
of  the  instiument  imperatively  demand  it.  A  false  step  at  this  time 
might  be  fatal  to  the  development  of  wliat  Chief  Justice  Marshall  called 
the  American  Empire.  Choice  in  some  cases,  the  natural  gravitation  of 
small  bodies  towards  large  ones  in  others,  the  result  of  a  successful  war 

31 


482  TKEATY-MAlvING  PUWlii;  OF  THE  U.  S. 

in  still  others,  may  briug  about  conditions  which  would  render  the  an- 
nexation of  distant  possessions  desirable.  If  those  possessions  are  in- 
habited by  alien  races,  differing  from  us  in  religion,  customs,  laws, 
methods  of  taxation  and  modes  of  thought,  the  administration  of  govern- 
ment and  justice,  according  to  Anglo-Saxon  principles,  may  for  a  time  be 
impossible;  and  the  question  at  once  arises  whether  large  concessions 
ought  not  to  be  made  for  a  time,  that,  ultimately,  our  own  theories  may 
be  carried  out,  and  the  blessings  of  a  free  government  under  the  Consti- 
tution extended  to  them.  We  decline  to  hold  that  there  is  anything  in 
the  Constitution  to  forbid  such  action. 

'•  We  are  therefore  of  opinion  that  the  Island  of  Porto  Rico  is  a  terri- 
tory appurtenant  and  beh)ngiug  to  the  United  States,  but  not  a  part  of 
the  United  States  within  the  revenue  clauses  of  the  Constitution;  that 
the  Foraker  act  is  constitutional,  so  far  as  it  imposes  duties  on  imports 
from  such  island,  and  that  the  plaintiff  cannot  recover  back  the  duties 
exacted  in  this  case."     The  judgment  of  the  Circuit  Court  was  affirmed. 

OPINION  WHITE,  J.,  IN  DOWNES  VS.  BIBWELL. 

Mr.  Justice  Brown  announced  the  conclusion  and  judgment  of  the 
Court;  Mr.  .Justice  White,  however,  delivered  an  opinion  uniting  in  the 
judgment  and  the  conclusion,  but  differing  as  to  the  process  of  reasoning 
by  which  the  conclusion  was  reached.  Justices  Shikas  and  McKenna 
concurred  in  the  whole  opinion  while  Mr.  Justice  Gray  practically  con- 
curred although  he  added  a  few  words  in  a  separate  opinion.  (See  p.  488, 
2yofit,  of  this  appendix. ) 

Mr.  Justice  White's  opinion,  (182  U.  S.  pp.  287-344)  which  is  the 
longest  of  all  the  opinions  delivered  on  May  27th,  is  a  lengthy  review  of 
historical  and  legal  precedents  regarding  the  application  of  the  treaty- 
making  power  to  the  acquisition  of  territory  and  the  subsequent  gov- 
ernment of  the  territory  acquired.  Inasmuch  as  four  members  of  the 
court  united  in  this  opinion,  and  as  some  of  the  members  uniting  in  the 
other  opinions  coincide  to  some  extent  with  Mr.  Justice  White,  this 
opinion  in  so  far  as  it  relates  to  the  treaty-making  power  is  of  equal  if 
not  greater  weight  than  any  other  opinion  rendered  in  the  Insular  Cases. 
The  view  is  taken  that  the  treaty-making  power  cannot  incorporate  ter- 
ritory into  the  domain  of  the  United  States  without  subsequent  congres- 
sional action,  but  that  it  has  the  power  to  purchase  territory,  and  that 
the  ultimate  disposition  of  it  rests  with  Congress. 

There  is  an  exhaustive  resume  of  the  instances  in  which  the  treaty- 
making  power  has  been  exercised  and  of  the  subsequent  government  of 
territory  obtained  in  this  opinion. 

At  the  outset  (182  U.  S.  p.  288)  he  states  eight  propositions  of  law  as  to 
the  application  of  constitutional  provisions  to  territory  of  the  United 
States,  from  which  he  deduces  the  following  (182  U.  S.  p.  293): 

"From  these  conceded  propositions  it  follows  that  Congress  in  legis- 
lating for  Porto  Rico  was  only  empowered  to  act  within  the  Constitu- 
tion and  subject  to  its  applicable  limitations,  and  that  every  provision 
of  the  Constitution  which  applied  to  a  country  situated  as  was  that 
island,  was  potential  in  Porto  Rico. 


INSULAR  CASES  APPENDIX.  483 

"And  the  determination  of  what  particular  provision  of  the  Consti- 
tution is  applicable,  generally  speakinj^,  in  all  cases,  involves  an  inquiry 
into  the  situation  of  the  territory  ;md  its  relations  to  the  United  States." 

After  discussing  the  relations  of  Porto  Rico  to  the  United  States  and 
wliether  the  uniformity  provisions  of  the  Constitution  are  applicable 
thereto,  he  says  (182  U.  S.  p.  299):  "  This  is  to  be  resolved  by  answer- 
ing the  inquiry,  Had  Porto  Rico,  at  the  time  of  the  passage  of  the  act 
in  question,  been  incorporated  into  and  become  an  integral  part  of  the 
United  States?" 

Mr.  Justice  White  then  devotes  a  large  part  of  his  opinion  to  the 
general  rules  of  international  law,  and  to  the  right  of  the  United  States 
to  acquire  territory,  and  from  that  point  takes  up  the  question  of 
whether  the  provisions  of  the  Constitution  apply  to  the  new  territory 
as  soon  as  it  is  acquired,  in  which  respect  he  declares  it  would  be  but 
to  "  admit  the  power  to  acquire  and  immediately  to  deny  its  beneficial  ex- 
istence ";  he  refers  to  a  number  of  instances  in  which  the  United  States 
has  acquired  territory  for  particular  purposes,  such  as  the  Guano  Islands, 
and  cites  numerous  cases  relating  thereto.     At  p.  307,  he  says: 

"And  these  considerations  concerning  discovery  are  equally  appli- 
cable to  ownership  resulting  from  conquest.  A  just  war  is  declared  and 
in  its  prosecution  the  territory  of  the  enemy  is  invaded  and  occupied. 
Would  not  the  war,  even  if  waged  successfully,  be  fraught  with  danger 
if  the  effect  of  occupation  was  to  necessarily  incorporate  an  alien  and 
hostile  people  into  the  United  States  ?  Take  another  illustration.  Sup- 
pose at  the  termination  of  a  war  the  hostile  government  had  been  over- 
thrown and  the  entire  territory  or  a  portion  thereof  was  occupied  by 
the  United  States,  and  there  was  no  government  to  treat  with  or  none 
willing  to  cede  by  treaty,  and  thus  it  became  necessary  for  the  United 
States  to  hold  the  conquered  country  for  an  indefinite  period,  or  at  least 
until  such  time  as  Congress  deemed  that  it  should  be  either  released  or 
retained  because  it  was  apt  for  incorporation  into  the  United  States. 
If  holding  was  to  have  the  effect  which  is  now  claimed  for  it,  would 
not  the  exercise  of  judgment  respecting  the  retention  be  so  fraught 
with  danger  to  the  American  people  that  it  could  not  be  safely  exer- 
cised ? 

"Yet,  again.  Suppose  the  United  States,  in  consequence  of  outrages 
perpetrated  upon  its  citizens,  was  obliged  to  move  its  armies  or  send 
its  fleets  to  obtain  redress,  and  it  came  to  pass  that  an  expensive  war 
resulted  and  culminated  in  the  occupation  of  a  portion  of  the  territory 
of  the  enemy,  and  that  the  retention  of  such  territory — an  event  illus- 
trated by  examples  in  history— could  alone  enable  the  United  States  to 
recover  the  pecuniary  loss  it  had  suffered.  And  suppose  further  that 
to  do  so  would  require  occupation  for  an  indefinite  period,  dependent 
upon  whether  or  not  ]iaympnt  was  made  of  the  required  indemnity.  It 
being  true  that  incorporation  must  necessarily  follow  the  retention  of 
the  territory,  it  would  result  that  the  United  States  must  abandon  all 
hope  of  recouping  itself  for  the  loss  suffered  by  the  unjust  war,  and, 
hence,  the  whole  burden  would  be  entailed  upon  the  people  of  tlie 
United  States.     Tliis  would  be  a  necessary  consequence,  because  if  the 


484  TREATY-IVIAKING  POWER  OF  THE  U.  S. 

United  States  did  not  hold  the  territory  as  security  for  the  needed  in- 
demnity it  could  not  collect  such  iudemuity,  and  on  the  other  hand  if 
incorporation  must  follow  from  holding  the  territory  the  uniformity 
provision  of  tlie  Constitution  would  prevent  the  assessment  of  the  cost 
of  the  war  solely  upon  the  newly  acquired  country.  In  this,  as  in  the 
case  of  discovery,  the  traditions  and  practices  of  the  government  demon- 
strate the  unsoundness  of  the  contention.  Congress,  on  May  13,  1846, 
declared  that  war  existed  with  Mexico.  In  the  summer  of  that  year 
New  Mexico  and  California  were  subdued  by  the  American  arms  and 
the  military  occupation  which  followed  continued  until  after  the  treaty 
of  peace  was  ratified,  in  May,  1848.  Tampico,  a  Mexican  port,  was  oc- 
cupied by  our  forces  on  November  15,  1846,  and  possession  was  not 
surrendered  until  after  the  ratification.  In  the  spring  of  1847  Presi- 
dent Polk,  thrcmgh  the  Secretary  of  the  Treasury,  prepared  a  tariff  of 
duties  on  imports  and  tonnage  which  was  put  in  force  in  the  conquered 
country.  (1  Senate  Documents,  First  Session,  30th  Congress,  pp.  562, 
569.)  By  this  tariff,  duties  were  laid  as  well  on  merchandise  exported 
from  the  United  States  as  from  other  countries,  except  as  to  sujjplies 
for  our  army,  and  on  May  10,  1847,  an  exemption  from  tonnage  duties 
was  accorded  to  '  all  vessels  chartered  by  the  United  States  to  convey 
supplies  of  any  and  all  descriptions  to  our  army  and  navy,  and  actually 
laden  with  supplies.'  (lb.  583.)  An  interesting  debate  respecting  the 
constitutionality  of  this  action  of  the  President  is  contained  in  18  Cong. 
Globe,  First  Session,  30th  Congress,  at  pp.  478,  479,  484-489,  495,  498, 
etc." 

After  reviewing  Fleming  vs.  Page,  (9  Howard,  603, )  and  Cross  vs.  Uar- 
rison,  (16  Howard,  164),  he  continues  (182  U.  S.  p.  310): 

"Tliis  further  argument,  however,  is  advanced.  Granting  that  Con- 
gress may  regulate  without  incorporating,  where  the  military  arm  has 
taken  possession  of  foreign  territory,  and  where  there  has  been  or  can 
be  no  treaty,  this  does  not  concern  the  decision  of  this  case,  since  there 
is  here  involved  no  regulation  but  an  actual  cession  to  the  United  States 
of  territory  by  treaty.  The  general  rule  of  the  law  of  nations,  by  which 
the  acquiring  government  fixes  the  status  of  acquired  territory,  it  is 
urged,  does  not  apply  to  the  government  of  the  United  States,  because 
it  is  incompatible  with  the  Constitution  that  that  government  should 
hold  territory  under  a  cession  and  administer  it  as  a  dependency  with- 
out its  becoming  incorporated.  This  claim,  I  have  jireviously  said, 
rests  on  the  erroneous  assumption  that  the  United  States  under  the 
Constitution  is  stripped  of  those  powers  which  are  absolutely  inherent 
in  and  essential  to  national  existence.  Tlie  certainty  of  this  is  illus- 
trated by  the  examples  already  made  use  of  in  the  supposed  cases  of 
discovery  and  conquest. 

"If  the  authority  by  treaty  is  limited  as  suggested,  then  it  will  be 
impossible  to  terminate  a  successful  war  by  acquiring  territory  through 
a  treaty,  without  immediately  incorporating  such  territory  into  the 
United  States.  Let  me,  however,  eliminate  tlie  case  of  war  and  con- 
sider the  treaty-making  power  as  subserving  the  purposes  of  the  peace- 
ful evolution  of  national  life.     Suppose  the   necessity  of  acquiring  a 


INSULAR  CASl^S  APPENDIX.  485 

naval  station  or  a  coaling  station  on  an  island  inhabited  with  people  ut- 
terly unfit  for  American  citizenship  and  totally  incapable  of  bearing 
their  proportionate  burden  of  the  national  expense.  Could  such  island, 
under  the  rule  which  is  now  insisted  upon,  be  taken?  Suppose  again 
the  acquisition  of  territory  for  an  interoceanic  canal,  where  an  inhab- 
ited strip  of  land  on  either  side  is  essential  to  the  United  States  for  the 
preservation  of  tlie  work.  Can  it  be  denied  that,  if  the  requirements 
of  the  Constitution  as  to  taxation  are  to  immediately  control,  it  miglit 
be  impossible  by  treaty  to  accomplish  the  desired  result?" 

In  speaking  of  the  extent  of  the  treaty-making  power  Justice  White 
says  (182  U.  S.  p.  312): 

"Let  me  come,  however,  to  a  consideration  of  the  express  powers 
which  are  conferred  by  the  Constitution  to  show  how  unwarranted  is 
the  principle  of  immediate  incorporation,  which  is  here  so  strenuously 
insisted  on.  In  doing  so  it  is  conceded  at  once  that  the  true  rule  of 
construction  is  not  to  consider  one  provision  of  the  Constitution  alone, 
but  to  contemplate  all,  and  therefore  to  limit  one  conceded  attribute  by 
those  qualilications  which  naturally  result  from  the  other  powers 
granted  by  that  instrument,  so  that  the  whole  may  be  interpreted  by 
the  spirit  which  vivifies,  and  not  by  the  letter  which  killeth.  Un- 
doubtedly, the  power  to  carry  on  war  and  to  make  treaties  implies  also 
the  exercise  of  those  incidents  which  ordinarily  inhere  in  them.  In- 
deed, in  view  of  the  rule  of  construction  which  I  have  just  conceded — 
that  all  powers  conferred  by  the  Constitution  must  be  interpreted  with 
reference  to  the  nature  of  the  government  and  be  construed  in  harmony 
with  related  provisions  of  the  Constitution — it  seems  to  me  impossible 
to  conceive  that  the  treaty-making  power  by  a  mere  cession  can  incor- 
porate an  alien  people  into  the  United  States  without  the  expiess  or 
implied  approval  of  Congress.  And  from  this  it  must  follow  that  there 
can  be  no  foundation  for  the  assertion  that  where  the  treaty-making 
power  has  inserted  conditions  which  preclude  incorporation  until  Con- 
gress has  acted  in  respect  thereto,  such  conditions  are  void  and  incor- 
poration results  in  spite  thereof.  If  the  treaty-making  power  can  ab- 
solutely, without  the  consent  of  Congress,  incorporate  territory,  and  if 
that  power  may  not  insert  conditions  against  incorporation,  it  must 
follow  that  the  treaty-making  power  is  endowed  by  the  Constitution 
with  the  most  unlimited  riglit,  susceptible  of  destroying  every  other 
pi'ovision  of  the  Constitution;  that  is,  it  may  wreck  our  institutions. 
If  the  proposition  be  true,  then  millions  of  inhabitants  of  alien  terri- 
tory, if  acquired  by  treaty,  can,  without  the  desire  or  consent  of  the 
people  of  the  United  States  speaking  through  Congress,  be  immediately 
and  irrevocably  incorporated  into  the  United  States,  and  the  whole 
structure  of  the  government  be  overthrown.  While  thus  aggrandizing 
the  treaty-making  power  on  the  one  hand,  the  construction  at  the  same 
time  minimizes  it  on  the  other,  in  that  it  strips  that  authority  of  any 
right  to  acquire  territory  upon  any  condition  which  would  guard  the 
people  of  the  United  States  from  the  evil  of  immediate  incorporation. 
The  ti-eaty-making  power  then,  under  this  contention,  instead  of  hav- 
ing the  symmetrical  functions  which  belong  to  it  from  its  very  nature. 


486  TREATY-MAKING   POWER  OF  THE  TJ.  S. 

becomes  distorted — vested  with  the  right  to  destroy  upon  the  one  hand 
aud  deprived  of  .all  power  to  protect  the  goverumeut  on  the  other.  .  ,  ." 

The  opinion  then  takes  up  the  question  of  the  riglit  of  this  Govern- 
ment to  sell,  and  the  extent  of  the  treaty-making  power  to  acquire,  ter- 
ritory, aud  iu  doing  so  demonstrates  that  the  treaty-making  power  must 
be  sufficient  to  acquire  territory  conditioually  without  incorporating  it 
at  once  as  a  part  of  the  Union.     He  says  (182  U.  S.  p.  315): 

"The  reasoning  which  has  sometimes  been  indulged  in  by  those  who 
asserted  that  the  Constitution  was  not  at  all  operative  in  the  territories 
is  that,  as  they  were  acquired  by  purchase,  the  right  to  buy  included 
the  right  to  sell.  This  has  been  met  by  the  proposition  that  if  the  coun- 
try purchased  and  its  inhabitants  became  incorporated  into  the  United 
States,  it  came  under  the  shelter  of  the  Constitution,  and  no  power  ex- 
isted to  sell  American  citizens.  In  conformity  to  the  principles  which  I 
have  admitted  it  is  impossible  for  me  to  say  at  one  and  the  same  time  that 
territory  is  an  integral  part  of  the  United  States  protected  by  the  Con- 
stitution, and  yet  the  safeguards,  privileges,  rights  and  immunities 
which  arise  from  this  situation  are  so  ephemeral  in  their  character  that 
by  a  mere  act  of  sale  they  may  be  destroyed.  And  applying  this  rea- 
soning to  the  provisions  of  the  treaty  tinder  consideration,  to  me  it 
seems  indubitable  that  if  the  treaty  with  Spain  incorporated  all  the 
territory  ceded  into  the  United  States,  it  resulted  that  the  millions  of 
people  to  whom  that  treaty  related  were,  without  the  consent  of  the 
American  people  as  expressed  by  Congress,  aud  without  any  hope  of 
relief,  indissolubly  made  a  part  of  our  common  country. 

"  Undoubtedly,  the  thought  that  under  the  Constitution  power  existed 
to  dispose  of  people  and  territory  and  thus  to  annihilate  the  rights  of 
American  citizens  was  contrary  to  the  conceptions  of  the  Constitution 
entertained  by  Washington  and  Jefferson.  In  the  written  suggestions  of 
Mr.  Jefferson,  when  Secretary  of  State,  reported  to  President  Washington 
in  March,  1792,  on  the  subject  of  proposed  negotiations  between  the 
United  States  and  Spain,  which  were  intended  to  be  communicated  by 
way  of  instruction  to  the  commissioners  of  the  United  States  appointed 
to  manage  such  negotiations,  it  was  observed,  in  discussing  the  possi- 
bility as  to  compensation  being  demanded  by  Spain  '  for  the  ascertain- 
ment of  our  right'  to  navigate  the  lower  part  of  the  Mississippi,  as  fol- 
lows : 

"  '  We  have  nothing  else'  (than  a  relinquishment  of  certain  claims  on 
Spain)  'to  give  in  exchange.  For  as  to  territory,  we  have  neither  the 
right  nor  the  disposition  to  alienate  an  inch  of  what  belongs  to  any 
member  of  our  Union.  Such  a  proposition  therefore  is  totally  inad- 
missible, and  not  to  be  treated  for  a  moment.'  (Ford's  Writings  of 
Jefferson,  vol.  V,  p.  476.) 

"  The  rough  draft  of  these  observations  were  submitted  to  Mr.  Ham- 
ilton, tlien  Secretary  of  the  Treasury,  for  suggestions,  previously  to  send- 
ing it  to  the  President,  some  time  before  March  5,  and  Hamilton  made 
the  following  (among  other)  notes  upon  it: 

"'  Page  25.  Is  it  true  that  the  United  States  have  no  right  to  alienate 
an  inch  of  the  territory  in  question,  except  in  the  case  of  necessity  inti- 


INSITLAS,  CASES  APPENDIX.  487 

mated  in  another  place  ?  Or  will  it  be  useful  to  avow  the  denial  of  such 
a  right  ?  It  is  apprehended  that  the  doctrine  which  restricts  the  aliena- 
tion of  territory  to  cases  of  extreme  necessity  is  applicable  rather  to  peo- 
pled territory  than  to  waste  and  uninhabited  districts.  Positions  re- 
straining the  right  of  the  United  States  to  accommodate  to  exigencies 
which  may  arise  ought  ever  to  be  advanced  with  great  caution,'  (Ford's 
Writings  of  Jefferson,  vol.  V,  p.  443. ) 

"Respecting  this  note,  Mr.  Jefferson  commented  as  follows:  'The 
power  to  alienate  the  unpeopled  territories  of  any  State  is  not  among 
the  enumerated  powers,  given  by  the  Constitution  to  the  general  gov- 
ernment, and  if  we  may  go  out  of  that  instrument  and  accommodate  to 
exigencies  which  may  arise  by  alienating  the  unpeopled  territory  of  a 
State,  we  may  accommodate  ourselves  a  little  more  by  alienating  that 
which  is  peopled,  and  still  a  little  more  by  selling  the  people  themselves. 
A  shade  or  two  more  in  the  degree  of  exigency  is  all  that  will  be  req- 
uisite, and  of  that  degree  we  shall  ourselves  be  the  judges.  However, 
may  it  not  be  hoped  that  these  questions  are  forever  laid  to  rest  by  the 
Twelfth  Amendment  once  made  a  part  of  the  Constitution,  declaring 
expressly  that  '  the  powers  not  delegated  to  the  United  States  by  the 
Constitution  are  reserved  to  the  States  respectively  ?'  And  if  the  gen- 
eral government  has  no  power  to  alienate  the  territory  of  a  State,  it  is 
too  irresistible  an  argument  to  deny  ourselves  the  use  of  it  on  the 
present  occasion."     (lb.) 

"  The  opinions  of  Mr.  Jefferson,  however,  met  the  approval  of  Presi- 
dent Washington.  On  Mai-ch  18,  1792,  in  inclosing  to  the  commissioners 
to  Spain  their  commission,  he  said,  among  other  things: 

'"You  will  herewith  receive  your  commission;  as  also  observations  on 
these  several  subjects  reported  to  the  President  and  approved  by  him, 
which  will  therefore  serve  as  instructions  for  you.  These  expressing 
minutely  the  sense  of  our  government,  and  what  they  wish  to  have  done, 
it  is  unnecessary  for  me  to  do  more  here  than  desire  you  to  pursue  these 
objects  unremittingly,'  &c.  (Ford's  Writings  of  Jefferson,  vol.  V,  p.  456. ) 

"  When  the  subject  matter  to  which  the  negotiation  related  is  con- 
sidered it  becomes  evident  that  the  word  '  State '  as  ab  ove  used  re- 
lated merely  to  territoiy  which  was  either  claimed  by  some  of  the  States, 
as  Mississippi  Territory  was  by  Georgia,  or  to  the  Northwest  Territory 
embraced  within  the  ordinance  of  1787,  or  the  territory  south  of  the 
Ohio  (Tennessee),  which  had  also  been  endowed  with  all  the  rights  and 
privileges  conferred  by  that  ordinance,  and  all  which  territory  had  orig- 
inally been  ceded  by  States  to  the  United  States  under  express  stipula- 
tions that  such  ceded  territory  should  be  ultimately  formed  into  States 
of  the  Union.  And  this  meaning  of  the  word  '  State  '  is  absolutely  in 
accord  with  what  I  shall  hereafter  have  occasion  to  demonstrate  was 
the  conception  entertained  by  Mr.  Jefferson  of  what  constituted  the 
United  States. 

"  True,  from  the  exigency  of  a  calamitous  war  or  the  necessity  of  a 
settlement  of  boundaries,  it  may  be  that  citizens  of  the  United  States 
may  be  expatriated  by  the  action  of  the  treaty-making  power,  impliedly 
or  expressly  ratified  by  Congress. 


488  TREATY-:^LVKING  POWER  OF  THE  U.  S. 

"  But  the  arising  of  these  particular  conditions  cannot  justify  the 
general  proposition  that  territory  which  is  an  integral  part  of  the  United 
States  may,  as  a  mere  act  of  sale,  be  disposed  of.  If  however  the  right 
to  dispose  of  an  incorporated  American  territory  and  citizens  by  the 
mere  exertion  of  the  power  to  sell  be  conceded,  arguendo,  it  would  not 
relieve  the  dilemma.  It  is  ever  true  that  where  a  malign  principle  is 
adopted,  as  long  as  the  error  is  adhered  to  it  must  continue  to  produce 
its  baleful  results.  Certainly,  if  there  be  no  power  to  acquire  subject 
to  a  condition,  it  must  follow  that  there  is  no  authority  to  dispose  of 
subject  to  conditions,  since  it  cannot  be  that  the  mere  change  of  form 
of  the  transaction  could  bestow  a  power  which  the  Constitution  has  not 
conferred.  It  would  follow  then  that  any  conditions  annexed  to  a  dis- 
position which  looked  to  the  protection  of  the  people  of  the  United 
States  or  to  enable  them  to  safeguard  the  disposal  of  territory  would  be 
void;  and  thus  it  would  be  that  either  the  United  States  must  hold  on 
absolutely  or  must  dispose  of  unconditionally. 

"  A  practical  illustration  will  at  once  make  the  consequences  clear. 
Suppose  Congress  should  determine  that  the  millions  of  inhabitants  of 
the  Philippine  Islands  should  not  continue  appurtenant  to  the  United 
States,  but  that  they  should  be  allowed  to  establish  an  autonomous  gov- 
ernment, outside  of  the  Constitution  of  the  United  States,  coupled, 
however,  with  such  conditions  providing  for  control  as  far  only  as  essen- 
tial to  the  guarantee  of  life  and  property  and  to  protect  against  foreign 
encroachment.  If  the  proposition  of  incorporation  be  well  founded,  at 
once  the  question  would  arise  whether  the  ability  to  impose  these  con- 
ditions existed,  since  no  power  was  conferred  by  the  Constitution  to 
annex  conditions  which  would  limit  the  disposition.  And  if  it  be  that 
the  question  of  wiiether  territory  is  immediately  fit  for  incorporation 
when  it  is  acquired  is  a  judicial  and  not  a  legislative  one,  it  would  fol- 
low that  the  validity  of  tlie  conditions  would  also  come  within  the  scope 
of  judicial  authority,  and  thus  the  entire  political  policy  of  the  govern- 
ment be  alone  controlled  by  the  judiciary. 

"  The  theory  as  to  the  treaty-making  power  upon  which  the  argument 
which  has  just  been  commented  upon  rests,  it  is  now  proposed  to  be 
shown,  is  refuted  by  the  history  of  the  government  from  the  beginning. 
There  has  not  been  a  single  cession  made  from  the  time  of  the  Con- 
federation up  to  the  present  day,  excluding  the  recent  treaty  with  Spain, 
which  has  not  contained  stipulations  to  the  effect  that  the  United  States 
through  Congress  would  either  not  disincorporate  or  would  incorporate 
the  ceded  territory  into  the  United  States.  There  were  such  conditions 
in  the  deed  of  cessicm  by  Virginia  when  it  conveyed  the  Xorthwest  Ter- 
ritory to  the  United  States.  Like  ccmditions  were  attached  by  Xorth 
Carolina  to  the  cession  whereby  the  territory  south  of  the  Ohio,  now  Ten- 
nessee, was  transferred.  Similar  provisions  were  contained  in  the  ces- 
sion by  Georgia  of  the  Mississippi  territory,  now  the  States  of  Alabama 
and  Mississippi.  Such  agreements  were  also  expressed  in  the  treaty  of 
1803,  ceding  Louisiana;  that  of  1819,  ceding  the  Floridas,  and  in  the 
treaties  of  1848  and  1853,  by  which  a  large  extent  of  territory  was  ceded 
to  this  country,  as  also  in  the  Alaska  treaty  of  1867.     To  adopt  the  limi- 


INSULAR  CASES  APPENDIX.  489 

tations  on  the  treaty-making  power  now  insisted  upon  would  presuppose 
that  every  one  of  these  conditions  thus  sedulously  provided  for  were 
superfluous,  since  the  guaranties  which  they  afforded  would  have  ob- 
tained, although  they  were  not  expressly  provided  for. 

"When  the  various  treaties  by  which  foreign  territory  has  been  ac- 
quired are  considered  in  tlie  light  of  the  circumstances  which  surrounded 
them,  it  becomes  to  my  mind  clearly  established  that  the  treaty-making 
power  was  always  deemed  to  be  devoid  of  authority  to  incorporate  ter- 
ritory into  the  United  States  without  the  assent,  express  or  implied,  of 
Congress,  and  that  no  question  to  the  contrary  has  ever  been  even 
mooted." 

Tiie  Dred  Scott  case,  (19  How.  438,)  is  discussed  at  some  length,  and 
the  history  of  territorial  government  and  of  acquisitions  by  the  United 
States,  with  extracts  from  the  treaties  with  France  ceding  Louisiana, 
with  Spain  ceding  Florida,  are  referred  to,  as  well  as  the  debates  in  the 
Senate  and  the  correspondence  relating  to  the  acquisition  of  Louisiana. 
The  Mexican  and  Alaskan  cessions  are  also  discussed  at  some  length 
with  the  effect  thereof  on  citizenship  of  the  inhabitants. 

The  articles  in  the  Spauisli  treaty  relating  to  citizenship  and  status  of 
the  ceded  territory  are  then  quoted,  and  the  effect  of  those  stipulations 
discussed,  in  regard  to  which  the  opinion  says  (182  U.  S.  p.  340): 

"  It  is  to  me  obvious  that  the  above  quoted  provisions  of  the  treaty  do 
not  stipulate  for  incorporation,  but  on  the  contrary  expressly  provide 
that  the  '  civil  rights  and  political  status  of  the  native  inhabitants  of  the 
territories  hereby  ceded,'  shall  be  determined  by  Congress.  When  the 
rights  to  which  this  careful  provision  refers  are  put  in  juxtaposition 
with  those  which  have  been  deemed  essential  from  the  foundation  of 
the  government  to  bring  about  incorporation,  all  of  which  have  been 
previously  referred  to,  I  cannot  doubt  that  the  express  purpose  of  the 
treaty  was  not  only  to  leave  the  status  of  the  territory  to  be  determined 
by  Congress  but  to  prevent  the  treaty  from  operating  to  the  contrary. 
Of  course,  it  is  evident  that  the  express  or  implied  acquiescence  by 
Congress  in  a  treaty  so  framed  cannot  import  that  a  result  was  brought 
about  which  the  treaty  itself — giving  effect  to  its  provisions — could  not 
produce.  And,  in  addition,  the  provisions  of  the  act  by  which  the  duty 
here  in  question  was  imposed,  taken  as  a  whole,  seem  to  me  plainly  to 
manifest  the  intention  of  Congress  that  for  the  present  at  least  Porto 
Rico  is  not  to  be  incorporated  into  the  United  States." 

OPINION  OF  GRAY,  J.,  IN  DOWNES  VS.  BIDWELL. 

The  whole  opinion  is  as  follows  (182  U.  S.  pp.  344-347): 
"  Concurring  in  the  judgment  of  affirmance  in  this  case,  and  in  sub- 
stance agreeing  with  the  opinion  of  Mr.  Justice  White,  I  will  sum  up 
the  reasons  for  my  concurrence  in  a  few  propositions,  wliich  may  also 
indicate  my  position  in  other  cases  now  standing  for  judgment. 

"The  cases  now  before  the  court  do  not  touch  the  authority  of  the 
United  States  over  the  Territories,  in  the  strict  and  technical  sense,  be- 
ing those  which  lie  within  tlio  United  States,  as  bounded  by  the  Atlantic 
and  Pacific  Oceans,  the  Dominion  of  Canada  and  the  Republic  of  Mexico, 


-41'0  TREATY-.MAKINCi    I'OWKU  OF  THE  U.  S. 

and  the  Territories  of  Alaska  and  Hawaii;  but  they  relate  to  territory, 
in  the  broader  sense,  acquired  by  the  United  States  by  war  with  a  for- 
eign State. 

'•  As  Chief  Justice  Marshall  said:  '  Tlie  Constitution  confers  abso- 
lutely on  tlie  Governnieut  of  the  Union  the  powers  of  making  war,  and 
of  makini^  treaties;  consequently,  that  government  possesses  the  power 
of  acquiring  territory,  either  by  conquest  or  by  treaty.  The  usage  of 
the  world  is,  if  a  nation  be  not  entirely  subdued,  to  consider  the  hold- 
ing of  conquered  territory  as  a  mere  military  occupation,  until  its  fate 
shall  be  determined  at  the  treaty  of  peace.  If  it  be  ceded  by  the  treaty, 
the  acquisition  is  confirmed,  and  the  ceded  territory  becomes  a  part  of 
the  nation  to  which  it  is  annexed;  either  on  the  terms  stipulated  in  the 
treaty  of  cession,  or  on  such  as  its  new  master  shall  impose.'  AmeiHcan 
Insurance  Co.  vs.  Canter,  (1828)  1  Pet.  511,  542. 

"  The  civil  government  of  the  United  States  cannot  extend  immedi- 
ately, and  of  its  own  force,  over  territory  acquired  by  war.  Such  ter- 
ritory must  necessarily,  in  the  first  instance,  be  governed  by  the  military 
power  under  the  control  of  the  President  as  commander  in  chief.  Civil 
government  cannot  take  effect  at  once,  as  soon  as  possession  is  acquired 
under  military  authority,  or  even  as  soon  as  that  possession  is  confirmed 
by  treaty.  It  can  only  be  put  in  operation  by  the  action  of  the  appro- 
priate political  department  of  the  government,  at  such  time  and  in  such 
degree  as  that  department  may  determine.  There  must,  of  necessity, 
be  a  transition  period. 

"In  a  conquered  territory,  civil  government  must  take  effect,  either 
by  the  action  of  the  treaty-making  power,  or  by  that  of  the  Congress  of 
the  United  States.  The  office  of  a  treaty  of  cession  ordinarily  is  to  put 
an  end  to  all  authority  of  the  foreign  government  over  the  territory; 
and  to  subject  the  territory  to  the  disposition  of  the  Government  of  the 
United  States. 

"The  government  and  disposition  of  territory  so  acquired  belong  to 
the  Government  of  the  United  States,  consisting  of  the  President,  the 
Senate,  elected  by  the  States,  and  the  House  of  Representatives,  chosen 
by  and  immediately  representing  the  people  of  the  United  States.  Trea- 
ties by  which  territory  is  acquired  from  a  foreign  State  usually  recog- 
nize this. 

"  It  is  clearly  recognized  in  the  recent  treaty  with  Spain,  especially 
in  the  ninth  article,  by  which  '  The  civil  rights  and  political  status  of 
the  native  inhabitants  of  the  territories  hereby  ceded  to  the  United 
States  shall  be  determined  by  the  Congress.' 

"  By  the  fourth  and  thirteenth  articles  of  the  treaty,  the  United  States 
agree  that,  for  ten  years,  Spanish  ships  and  merchandise  shall  be  ad- 
mitted to  the  ports  of  the  Pliilippine  Islands  on  the  same  terras  as  ships 
and  merchandise  of  the  United  States,  and  Spanish  scientific,  literary 
and  artistic  works,  not  subversive  of  public  order,  shall  continue  to  be 
admitted  free  of  duty  into  all  the  ceded  territories.  Neither  of  the 
provisions  could  be  carried  out  if  tlie  Constitution  required  the  customs 
regulations  of  the  United  States  to  apply  in  those  territories. 

"  In  the  absence  of  Congressional  legislation,  the  regulation  of  the 


INSULAR  CASES  APPENDIX.  491 

revenue  of  tlie  conquered  territory,  even  after  the  treaty  of  cession,  re- 
mains with  the  executive  ami  tnilitary  authority. 

"So  long  as  Conofress  has  not  incorporated  the  territory  into  the 
United  States,  neither  military  occupation  nor  cession  by  treaty  makes 
the  conquered  territory  domestic  territory,  in  the  sense  of  the  revenue 
laws.  But  those  laws  concerning  '  foreign  countries'  remain  applicable 
to  the  conquered  territory  until  changed  by  Congress.  Such  was  tlie 
unanimous  opinion  of  this  court,  as  declared  by  Chief  Justice  Taney, 
in  Fleininr/  vs.  Paije,  9  How.  603,  617. 

"  If  Congress  is  not  ready  to  construct  a  complete  government  for  the 
conquered  territory,  it  may  establish  a  temporary  government,  which  is 
not  subject  to  all  the  restrictions  of  the  Constitution. 

"  Such  was  the  effect  of  tlie  act  of  Congress  of  April  12,  1900,  c.  191, 
entitled  'An  act  temporarily  to  provide  revenues  and  a  civil  government 
for  Porto  Rico,  and  for  other  purposes.'  By  the  third  section  of  that 
act,  it  was  expressly  declared  that  the  duties  thereby  established  on 
merchandise  and  articles  going  into  Porto  Rico  from  the  United  States, 
or  coming  into  the  United  States  from  Porto  Rico,  should  cease  in  any 
event  on  March  1,  1902,  and  sooner  If  the  legislative  assembly  of  Porto 
Rico  should  enact  and  put  into  operation  a  system  of  local  taxation  to 
meet  the  necessities  of  the  government  established  by  that  act. 

"  The  system  of  duties,  temporarily  established  by  that  act  during  the 
transition  period,  was  within  the  authority  of  Congress  under  the  Con- 
stitution of  the  United  States." 

DISSENTING  OPINIONS  IN  BOWNES  VS.  BIDWELTi. 

Mr.  Chief  Justice  Foller  delivered  a  dissenting  opinion  (182  U.  S. 
347-:)75)  in  which  Justices  Harlan,  Brewer  and  Peckham  concurred, 
Justice  Harlan  also  wrote  a  separate  opinion. 

The  Chief  Justice  considered  that  the  Foraker  act  created  a  civil  gov- 
ernment In  Porto  Rico  and  placed  it  on  a  par  with  other  organized  terri- 
tories, so  far  as  constitutional  provisions  are  concerned,  including  such 
as  relate  to  uniformity  of  taxation  and  imposts. 

The  opinion  quotes  the  2d,  3d,  4th,  .5th  and  38th  sections  of  the  act 
(182  U.  S.  pp.  349,  et  seq.,  and  see  pp.  .513,  et  seq.  post,  of  this  appendix), 
and  declares  that  "  this  act  on  its  face  does  not  comply  with  the  [con- 
stitutional] rule  of  uniformity,"  and  says  (182  U.  S.  352): 

"  The  uniformity  required  by  the  Constitution  Is  a  geographical  uni- 
formity, and  is  only  attained  when  the  tax  operates  with  the  same  force 
and  effect  in  every  place  where  the  subject  of  it  is  found.  Knowlton  vs. 
Moore,  178  U.  S.  41;  Head  Money  Cases,  112  U.  S.  580,  .594.  But  it  is  said 
that  Congress  in  attempting  to  levy  these  duties  was  not  exercising 
power  derived  from  the  first  clause  of  section  8,  or  restricted  by  it,  be- 
cause in  dealing  with  the  territories  Congress  exercises  unlimited  pow- 
ers of  government,  and,  moreover,  that  these  duties  are  merely  local 
taxes. 

"  This  court,  in  1820,  when  Marshall  was  Chief  Justice,  and  Wash- 
ington, William  Johnson,  Livingston,  Todd,  Duvall  and  Story 
were  his  associates,  took  a  different  view  of  the  power  of  Congress  in 


492  TREATY-MAKING  POWER  OF  THE  U.  S. 

the  matter  of  laying  and  collecting  taxes,  duties,  imposts  and  excises 
in  the  territories,  and  its  ruling  in  Lowjhhorough  vs.  Blake,  5  Wheat. 
317,  has  never  been  overruled. 

"It  is  said  in  one  of  the  opinions  of  the  majority  that  the  Chief  Jus- 
tice 'maile  certain  observations  wliicli  have  occasioned  some  embariass- 
ment  in  other  cases.'  Manifestly  this  is  so  in  this  case,  for  it  is  necessary 
to  os'errule  that  decisicm  in  order  to  reach  tlie  result  herein  announced." 

Tliese  expressions  of  Chief  Justice  Makshall,,  in  his  opinion,  were  not 
obiter.  During  a  discussion  of  many  of  the  cases  cited  in  the  briefs  and 
arguments,  as  to  the  extensiim  of  the  Constitution  over  territory  acquired 
by  the  United  States  and  the  status  of  such  territory,  the  opinion  says 
(182  U.  S.  3.58): 

"  I  repeat  that  no  satisfactory  ground  has  been  suggested  for  restrict- 
ing the  words  'throughout  the  United  States,'  as  qualifying  the  power 
to  impose  duties,  to  the  States,  and  that  ccmclusion  is  the  more  to  be 
avoided  wlien  we  reflect  that  it  rests,  in  the  last  analysis,  on  the  asser- 
tion of  the  possession  by  Congress  of  unlimited  power  over  territories." 

The  keynote  of  this  opiuicm  is  tliat  all  powers  of  Congress,  and  in 
factall  governmental  powers  of  the  United  States,  are  necessarily  limited 
by  the  Constitution,  and  that  the  Constitution  applies  to  all  territory 
owned  by  the  United  States. 

As  to  the  extent  of  the  treaty -making  power  the  opinion  says  (182  U. 
S.  p.  369)  after  referring  to  Railway  Co.  vs.  McGHnn,  (114  U.  S.  546)  and 
Cross  vs.  Harrison,  (16  Howard,  198):  "  The  power  of  the  United  States 
to  acquire  territory  by  conquest,  by  treaty,  or  by  discoverj^  and  occupa- 
tion, is  not  disputed,  nor  is  the  proposition  that  in  all  international  re- 
lations, interests,  and  responsibilities  the  United  States  is  a  separate, 
independent,  and  sovereign  nation;  but  it  does  not  derive  its  powers 
from  international  law,  which,  though  a  part  of  our  municipal  law,  is 
not  a  part  of  the  organic  law  of  the  land.  The  source  of  national  power 
in  this  country  is  the  Constitution  of  the  United  States;  and  the  gov- 
ernment, as  to  our  internal  affairs,  possesses  no  inherent  sovereign  power 
not  derived  from  that  instrument,  and  inconsistent  with  its  letter  and 
spirit. 

"  Doubtless  the  subjects  of  the  former  sovereign  are  brought  by  the 
transfer  under  the  protection  of  the  acquiring  power,  and  are  so  far 
forth  impressed  with  its  nationality,  but  it  does  not  follow  that  they 
necessarily  acquire  the  full  stafAis  of  citizens.  The  ninth  article  of  the 
treaty  ceding  Porto  Rico  to  the  United  States  provided  that  Spanish 
subjects,  natives  of  the  Peninsula,  residing  in  the  ceded  territory,  might 
remain  or  remove,  "and  in  case  they  remained  might  preserve  their  alle- 
giance to  the  crown  of  Spain  by  making  a  declaration  of  their  decision 
to  do  so,  '  in  default  of  which  declaration  they  shall  be  held  to  have  re- 
nounced it  and  to  have  adoj^ted  the  nationality  of  the  territory  in  which 
they  reside." 

"The  same  article  also  contained  this  paragraph:  'The  civil  rights 
and  political  status  of  the  native  inhabitants  of  the  territories  hereby 
ceded  to  the  United  States  shall  be  determined  by  Congress.'  This  was 
nothing  more  than  a  declaration  of  the  accepted  principles  of  interna- 


INSULAR  CASES  APPENDIX.  493 

tional  law  applicable  to  the  status  of  the  Spanish  subjects  and  of  the 
native  inhabitants.  It  did  not  assume  that  Congress  could  deprive  the 
inhabitants  of  ceded  territory  of  rights  to  which  they  might  be  entitled. 
The  grant  by  Spain  could  not  enlarge  the  powers  of  Congress,  nor  did 
it  purport  to  secure  from  the  United  States  a  guaranty  of  civil  or  politi- 
cal privileges. 

"  Indeed  a  treaty  which  undertook  to  take  away  what  the  Constitu- 
tion secured  or  to  enlarge  the  Federal  jurisdiction  would  be  simply 
void. 

" '  It  need  hardly  be  said  that  a  treaty  cannot  change  the  Constitution 
or  be  held  valid  if  it  be  in  violation  of  that  instrument.  This  results 
from  the  nature  and  fundamental  principles  of  our  government.'  The 
Cherokee  Tobacco,  11  Wall.  620.  (Citing  also  Mr.  Justice  Field  in  Geof- 
roy  vs.  mggs,  133  U.  S.  258,  p.  267.     See  §  335,  p.  23,  vol.  II).     .     .     . 

"And  it  certainly  cannot  be  admitted  that  the  power  of  Congress  to 
lay  and  collect  taxes  and  duties  can  be  curtailed  by  an  ari'angement 
made  with  a  foreign  nation  by  the  President  and  two-thirds  of  a  quorum 
of  the  Senate.     See  2  Tucker  on  the  Constitution,  §§  354,  355,  356." 

The  opinion  concludes  by  attempting  to  refute  the  views  expressed 
in  Justice  White's  opinion  as  follows  (182  U.  S.  p.  373): 

"  The  concurring  opinion  recognizes  the  fact  that  Congress,  in  deal- 
ing with  the  people  of  new  territories  or  possessions,  is  bound  to  respect 
the  fundamental  guarantees  of  life,  liberty,  and  property,  but  assumes 
that  Congress  is  not  bound,  in  those  territories  or  possessions,  to  follow 
the  rules  of  taxation  prescribed  by  the  Constitution.  And  yet  the  power 
to  tax  involves  the  power  to  destroy,  and  the  levy  of  duties  touches  all 
our  people  in  all  places  under  the  jurisdiction  of  the  government. 

"  The  logical  result  is  that  Congress  may  prohibit  commerce  alto- 
gether between  tbe  States  and  territories,  and  may  prescribe  one  rule 
of  taxation  in  one  territory,  and  a  different  rule  in  another. 

"That  theory  assumes  that  the  Constitution  created  a  government 
empowered  to  acquire  countries  throughout  the  world,  to  be  governed 
by  different  rules  than  those  obtaining  in  the  original  States  and  terri- 
tories, and  substitutes  for  the  present  system  of  republican  government, 
a  sj'stem  of  domination  over  distant  provinces  in  the  exercise  of  unre- 
stricted power. 

"In  our  judgment,  so  much  of  the  Porto  Pican  act  as  authorized 
the  imposition  of  these  duties  is  invalid,  and  plaintiffs  were  entitled  to 
recover. 

"  Some  argument  was  made  as  to  general  consequences  apprehended 
to  flow  from  this  result,  but  the  language  of  the  Constitution  is  too 
plain  and  unambiguous  to  permit  its  meaning  to  be  thus  influenced. 
There  is  nothing  'in  the  literal  construction  so  obviously  absurd,  or 
mischievous,  orrej)ugnant  to  the  general  spirit  of  the  instrument,  as  to 
justify  those  who  expound  the  Constitution'  in  giving  it  a  construction 
not  warranted  by  its  words. 

"  Briefs  have  been  pres(;nted  at  this  bar,  purporting  to  be  on  behalf 
of  certain  industries,  and  eloquently  setting  forth  the  desirability  that 
our  government  should  possess  the  power  to  impose  a  tariff  ou  the 


494  TREATY-MAKING  POWER  OF  THE  U.  S. 

products  of  newly  acquired  territories  so  iis  to  diminish  or  remove 
compitiiion.  That,  liowever,  furnishes  no  bivsis  for  judicial  judj:;ment, 
and  if  the  jirodiicers  of  staples,  in  tlie  existin<^  States  of  tliis  Union, 
believe  the  Constitution  should  be  amended  so  as  to  reach  that  result, 
the  instruujeut  itself  provides  how  such  amendment  can  be  accom- 
plished. The  people  of  all  the  States  are  entitled  to  a  voice  in  the  set- 
tlement of  that  subject. 

"  Ajjain,  it  is  objected  on  behalf  of  the  government  that  the  posses- 
sion of  absolute  power  is  essential  to  the  acquisition  of  vast  and  dis- 
tant territories,  and  that  we  shoukl  regard  the  situation  as  it  is  to-day 
rather  than  as  it  was  a  century  ago.  '  We  must  look  at  the  situation  as 
comprehending  a  possibility — I  do  not  say  a  probability,  but  a  possi- 
bility— tiiat  the  question  might  be  as  to  the  powers  of  this  government 
in  the  acquisition  of  Egypt  and  the  Soudan,  or  a  section  of  Central 
Africa,  or  a  spot  in  the  Antarctic  Circle,  or  a  section  of  the  Chinese  Em- 
pire.' 

"  But  it  must  be  remembered  that,  as  Marshall  and  Story  declared, 
the  Constitution  was  framed  for  ages  to  come,  and  that  the  sagacious 
men  who  framed  it  were  well  aware  that  a  mighty  future  waited  on 
their  work.  The  rising  sun  to  which  Franklin  referred  at  the  close  of 
the  convention,  they  well  knew,  was  that  star  of  empire,  whose  course 
Berkeley  had  sung  sixty  years  before. 

"  They  may  not  indeed  have  deliberately  considered  a  triumphal 
progress  of  the  nation,  as  such,  around  the  earth,  but,  as  Marshall 
■wrote:  'It  is  not  enough  to  say,  that  this  particular  case  was  not  in 
the  mind  of  the  convention,  when  the  article  was  framed,  nor  of  the 
American  people,  when  it  was  adopted.  It  is  necessary  to  go  farther, 
and  to  say  that,  had  this  particular  case  been  suggested,  the  language 
would  have  been  so  varied  as  to  exclude  it,  or  it  would  have  been  made 
a  special  exception.' 

"  This  cannot  be  said,  and,  on  the  contrary,  in  order  to  the  success- 
ful extension  of  our  institutions,  the  reasonable  presumption  is  that 
the  limitations  on  the  exertion  of  arbitrary  power  would  have  been 
made  more  rigorous. 

"  After  all,  these  arguments  are  merely  political,  and  '  political  rea- 
sons have  not  the  requisite  certainty  to  afford  rules  of  judicial  inter*- 
pretation.' 

"  Congress  has  power  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  all  the  powers  vested  by  the  Consti- 
tution in  the  government  of  the  United  States,  or  in  any  department  or 
officer  thereof.  If  the  end  be  legitimate  and  within  the  scope  of  the 
Constitution,  then,  to  accomplish  it,  Congress  may  use  'all  means 
which  are  appropriate,  which  are  plainly  adapted  to  that  end,  which 
are  not  prohibited,  but  consistant  with  the  letter  and  spirit  of  the  Con- 
stitution.' 

"  The  grave  duty  of  determining  whether  an  act  of  Congress  does  or 
does  not  comply  with  these  requirements  is  only  to  be  discharged  by 
applying  the  well  settled  rules  which  govern  the  interpretation  of  fun- 
damental law,  unaffected  by  the  theoretical  opinions  of  individuals. 


KSrsUTiAR  CASES  APPENDIX.  495 

"  Tested  by  those  rules  our  conviction  is  that  the  imposition  of  these 
duties  canuot  be  sustained." 

Mr.  Justice  Harlan  concurred  in  this  opinion  of  Chief  Justice  Fuller, 
but  he  also  wrote  a  brief  dissenting  opinion  (182  U.  S.  375-391).  The 
concluding  sentence  of  this  opinion  (182  U.  S.  p.  391),  is  as  follows: 

"In  my  opiaiou  Porto  Rico  became,  at  least  after  the  ratificiition  of 
the  treaty  with  Spain,  a  pai't  of  and  subject  to  the  jurisdiction  of  the 
United  States  in  respect  of  all  its  territory  and  people,  and  Congress 
could  not  tliereafter  impose  any  duty,  import  or  excise,  with  respect 
to  that  island  and  its  inliabitants,  which  departed  from  the  rule  of  uui- 
formity  established  by  the  Constitution." 

V. 

Henry  W.  Dooley,  Louis  G.  Smith,  and  Charles  W.  Ogden,  Trad- 
ing AS  Copartners  under  the  Firm  Name  of  Dooley,  Smith  & 
Company,  Plaintiffs  in  Error,  vs.  The  United  States,  Action 
No.  1. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 

District  of  New  York. 

No.  501,  October  term,  1900,  Transcript  filed  December  10,  1900  (Ins. 
Cas.  Rec.  p.  755). 

For  Dooley,  Smith  &  Co. : 

Henry  M.  Ward,  45  William  Street,  New  York  City,  Attorney,  John 
G.  Carlisle  (formerly  Secretary  of  Treasury  of  the  United  States), 
William  G.  Choate,  Joseph  Larocque,  William  Edmond  Curtis, 
of  counsel. 

For  the  United  States: 

In  the  Circuit  Court:  Henry  L.  Burnett,  United  States  District  At- 
torney for  the  Southern  District  of  New  York. 

In  the  Supreme  Court,  John  W.  Griggs,  Attorney-General  of  the 
United  States,  and  John  K.  Richards,  Solicitor-General. 

The  Goetze,  Be  Lima  and  Downes  cases  were  brought  to  recover  duties 
paid  in  New  York  on  goods  brought  from  Porto  Rico;  the  Dooley,  Smith 
&  Company  cases  were  brought  to  recover  duties  paid  on  goods  brought 
into  Porto  Rico  from  New  York.  There  were  two  actions;  one  to  re- 
cover duties  collected  prior  to,  and  the  other  for  duties  collected  after. 
May  1,  1900,  under  the  provisions  of  the  Foraker  act.  This  action  re- 
lated to  duties  prior  to  the  Foraker  act  and  the  complaint  prayed  judg- 
ment for  the  return  of  duties  paid  during  three  separate  periods  as 
stated  in  the  opinion  (182  U.  S.  Rep.  222): 

"  1.  From  July  26,  1898,  until  August  19,  1898,  under  the  terms  of  the 
proclamation  of  General  Miles,  directing  the  exaction  of  the  former 
Spanish  and  Porto  Hicau  duties. 


496  TREATY-MAKING  POWER  OF  THE  U.  S. 

"2.  From  August  19,  1S98,  until  February  1,  1899,  under  the  customs 
tariff  for  Porto  Kico,  pn)claiinod  by  order  of  the  President. 

"3.  From  February  1,  1899,  to  May  1,  1900,  under  the  amended  tariff 
customs  promulgated  January  L'O,  1899,  by  order  of  the  President." 

For  Petition  and  Complaint,  see  Ins.  Cas.  Rec.  p.  757. 

A  demurrer  was  interposed  upon  the  ground  of  the  want  of  juris- 
diction, and  the  insufficiency  of  the  comj)laint.  The  Circuit  Court, 
Lacombe,  J.,  sustained  the  demurrer  upon  the  second  ground,  and 
dismissed  the  petition  following  the  decision  of  Townsend,  J.,  in  the 
Goetze  case,  p.  21,  Ins.  Cas.  Kec,  and  103  Fed.  Rep.  73.  {Pro  forma, 
November  30,  1900,  Ins.  Cas.  Rec.  p.  764.) 

A  writ  of  error  was  allowed  and  the  cases  were  advanced  on  the 
Supreme  Court  calendar.  (Motion  papers  not  included  in  Ins.  Cas. 
Rec.) 

Briefs  were  filed  in  Supreme  Court  for  the  plaintiffs  in  error  by 
Henry  M.  Ward,  Attorney,  and  J.  G.  Carlisle,  and  William  Ed- 
MOND  Curtis  of  counsel ;  { Ins.  Cas.  Rec.  pp.  771-802  and  for  analysis  and 
list  of  authorities  cited,  see  Table  of  Contents,  Ins.  Cas.  Rec.  pp.  xxix- 
XXX. )  An  oral  argument  on  jurisdictional  questions  was  made  before 
the  Supreme  Court  by  Mr.  Ward  on  January  9,  1901  (Ins.  Cas.  Rec. 
pp.  803-815, )  and  an  oral  argument  on  the  general  questions  involved  by 
Mr.  Carlisle  in  this  case,  the  second  Duoley  case,  and  the  Armstrong 
case  referred  to  at  p.  500  pout  of  this  Appendix.  (Ins.  Cas.  Rec.  pp.  817- 
845.  For  analysis  of  these  arguments,  see  Table  of  Contents,  Ins.  Cas. 
Rec.  pp.  XXX.)  The  briefs  filed  with,  and  arguments  before,  the  Supreme 
Court  on  belialf  of  the  United  States  were  the  same  as  those  used  in 
other  Porto  Rican  cases  argued  in  January,  1901,  by  the  Attorney  Gen- 
eral and  Solicitor  General.  (Ins.  Cas.  Rec.  contra,  p.  846.)  This  case 
was  decided  May  27,  1901. 

OPINION  BROWN,  J.,  IN  DOOLF.Y  VS.  UNITED  STATES. 

Mr.  Justice  Broavn  delivered  the  opinion  in  this  case  (182  U.  S. 
223--'36),  Chief  Justice  Fuller  and  Justices  Harlan,  Brewer  and 
Peckham  concurring  with  him.  Mr.  Justice  White  delivered  a  dissent- 
ing opinion  in  which  Justices  Gray,  Shiras  and  McKenna  concurred. 
(182  U.  S.  236-243.) 

A  large  part  of  Mi*.  Justice  Brown's  opinion  relates  to  procedure  and 
whether  or  not  the  action  should  be  brought  in  the  Court  of  Claims  or 
in  the  Circuit  Court;  it  was  held  tliat  the  action  was  properly  brought. 
That  part  of  the  opinion  which  relates  to  the  exaction  of  duties  in  Porto 
Rico  prior  to  the  Foraker  act  is  as  follows  (182  U.  S.  230): 

"2.  In  their  legal  aspect,  the  duties  exacted  in  this  case  were  of 
three  classes:  (1)  the  duties  prescribed  by  General  Miles  under  order 
of  July  26.  189S,  which  merely  extended  the  existing  regulations;  (2)  the 
tariffs  of  August  19,  1898,  and  February  1,  1899,  prescribed  by  the  Pres- 
ident as  Commander-in-Chief,  which  continued  in  effect  until  April  11, 
1899,  the  date  of  the  ratification  of  the  treaty  and  the  cession  of  the 
island  to  the  United  States;  (3)  from  the  ratification  of  the  treaty  to 
May  1,  1900,  when  the  Foraker  act  took  effect. 


INSULAR  CASES  APPENDIX.  497 

"There  can  be  no  doubt  with  respect  to  the  first  two  of  these  classes, 
namely,  the  exaction  of  duties  under  the  war  power,  prior  to  the  rati- 
fication of  the  treaty  of  peace.  While  it  is  true  the  treaty  of  peace  was 
signed  December  10,  1898,  it  did  not  take  effect  upon  individual  rights, 
until  tlieie  was  an  exchange  of  ratifications.  {Haver  vs.  Yaker,  9  Wall. 
32.)  Upon  the  occupation  of  the  country  by  the  military  forces  of  the 
United  States,  the  authority  of  the  Spanish  Government  was  super- 
seded, but  the  necessity  for  a  revenue  did  not  cease.  Tlie  government 
must  be  carried  on,  and  there  was  no  one  left  to  administer  its  func- 
tions but  the  military  forces  of  the  United  States.  Money  is  requisite 
for  that  purpose,  and  money  could  only  be  raised  by  order  of  the  mili- 
tary commander.  The  most  natural  method  was  by  the  continuation 
of  existing  duties.  In  adopting  this  method,  Greneral  Miles  was  fully 
justified  by  the  laws  of  war.  The  doctrine  upon  this  subject  is  thus 
summed  up  by  Halleck  in  his  work  on  International  Law,  (vol.  2, 
page  444):  'The  right  of  one  belligerent  to  occupy  and  govern  the 
territory  of  the  enemy  while  in  its  military  possession,  is  one  of  the 
incidents  of  war,  and  flows  directly  from  the  right  to  conquer.  We, 
therefore,  do  not  look  to  the  Constitution  or  political  institutions  of 
the  conqueror,  for  authority  to  establish  a  government  for  the  territory 
of  the  enemy  in  his  possession,  during  its  military  occupation,  nor  for 
the  rules  by  which  the  powers  of  such  government  are  regulated  and 
limited.  Such  authority  and  such  rules  are  derived  directly  from  the 
laws  of  wai",  as  established  by  the  usage  of  the  world,  and  confirmed  by 
the  writings  of  publicists  and  decisions  of  courts — in  fine,  from  the  law 
of  the  nations.  .  .  .  The  municipal  laws  of  a  conquered  territory, 
or  the  laws  which  regulate  private  rights,  continue  in  force  during  mil- 
itary occupation,  except  so  far  as  they  are  suspended  or  changed  by  the 
acts  of  the  conqueror.  .  .  .  He,  nevertheless,  has  all  the  powers  of 
a  de  facto  government,  and  can  at  his  pleasure  either  change  the  exist- 
ing laws  or  make  new  ones.' 

"  In  New  Orleans  vs.  Steamship  Co.,  (20  Wall.  387, 393, )  it  was  said, with 
respect  to  the  powers  of  the  military  government  over  the  city  of  New 
Orleans  after  its  conquest,  that  it  had  '  the  same  power  and  rights  in 
territory  held  by  conquest  as  if  the  territory  had  belonged  to  a  foreign 
country  and  had  been  subjugated  in  a  foreign  war.  In  such  cases  the 
conquering  power  has  the  right  to  displace  the  pre-existing  authority, 
and  to  assume  to  such  extent  as  it  may  deem  proper  the  exercise  by 
itself  of  all  the  powers  and  functions  of  government.  It  may  appoint 
all  the  necessary  officers  and  clothe  them  with  designated  powers, 
larger  or  smaller,  according  to  its  pleasure.  It  may  prescribe  the  rev- 
enues to  be  paid,  and  apply  them  to  its  own  use  or  otherwise.  It  may 
do  anything  necessary  to  strengthen  itself  and  weaken  tlic  enemy. 
There  is  no  limit  to  the  powers  that  may  be  exerted  in  such  cases,  save 
those  which  are  found  in  the  laws  and  usages  of  war.  These  princi- 
ples have  the  sanction  of  all  publicists  who  have  considercMl  the  sub- 
ject.' See  also  Thirty  IJof/sheads  of  Sugar  vs.  Bai/le,  (9  Cr.  191 ) ;  Fleming 
vs.  Page,  (9  How.  603);  American  Inn.  Co.  vs.  Canter,  (1  Pet.  511). 

"But  it  is  useless  to  multiply  citations  upon  this  point,  since  the  au- 

32 


498  TREATY-MAKING  POWEK  OF  THE  U.  S. 

thority  to  exact  similar  duties  was  fully  considered  and  affirmed  by  this 
court  in  Cross  \s.  Uarrison,  (16  How.  164).  This  case  involved  the  valid- 
ity of  duties  exacted  by  the  military  commander  of  California  upon 
imports  from  foreign  countries,  from  the  date  of  the  treaty  of  peace, 
February  3,  1848,  to  November  13,  1849,  when  the  collector  of  customs 
appointed  by  the  President  entered  upon  the  duties  of  his  office.  Prior 
to  the  treaty  of  peace,  and  from  August,  1847,  duties  had  been  exacted 
by  the  military  authorities,  the  validity  of  which  does  not  seem  to  have 
been  questioned.  Page  189:  "  That  war  tariff,  however,  was  abandoned 
as  soou  as  the  military  govenor  had  received  from  Washington  informa- 
tion of  the  exchange  and  ratification  of  the  treaty  with  Mexico,  and 
duties  were  afterwards  levied  in  conformity  with  such  as  Congress  had 
imposed  upon  foreign  merchandise  imported  into  other  ports  of  the 
United  States,  Upper  California  having  been  ceded  by  the  treaty  to  the 
United  States.  The  duties  were  held  to  have  been  legally  exacted.' 
Speaking  of  the  duties  exacted  before  the  treaty  of  peace,  Mr.  Justice 
Wayne  observed  (p.  190):  'No  one  can  doubt  that  these  orders  of  the 
President,  and  the  action  of  our  Army  and  Navy  commanders  in  Cali- 
fornia, in  conformity  with  them,  was  according  to  the  law  of  arms  and 
the  right  of  conquest,  or  that  they  were  operative  until  the  ratification 
and  exchange  of  a  treaty  of  peace.  Such  would  be  the  case  upon  gen- 
eral principles  in  respect  to  w.ar  and  peace  between  nations.'  It  was 
further  held  that  the  right  to  collect  these  duties  continued  from  the 
date  of  the  treaty  up  to  the  time  when  official  notice  of  its  ratification 
and  exchange  were  received  in  California.  Owing  to  the  fact  that  no 
telegraphic  communication  existed  at  that  time,  the  news  of  the  ratifi- 
cation of  this  treaty  did  not  reach  California  until  August  7,  1848,  during 
which  time  the  war  tarili  was  continued.  The  question  does  not  arise 
in  this  case,  as  the  ratifications  of  the  treaty  appear  to  have  been  known 
as  soon  as  they  were  exchanged. 

"  The  court  further  held  in  Cross  vs.  Harrison  that  the  right  of  the 
military  commander  to  exact  the  duties  prescribed  by  the  tariff  laws  of 
the  United  States  continued  until  a  collector  of  customs  had  been  ap- 
pointed. Said  the  court:  'The  government,  of  which  Colonel  Mason 
was  the  executive,  had  its  origin  in  the  lawful  exercise  of  a  belligerent 
right  over  a  conquered  territory.  It  had  been  instituted  during  the  war 
by  a  command  of  the  President  of  the  United  States.  It  was  the  govex'n- 
meiit  when  the  territory  was  ceded  as  a  conquest,  and  it  did  not  cease,  as  a 
matter  of  course,  or  as  a  necessary  consequence,  of  the  restoration  of  peace. 
The  President  might  have  dissolved  it  by  withdrawing  the  army  and 
navy  officers  who  administered  it,  but  he  did  not  do  so.  Congress  could 
have  put  an  end  to  it,  but  that  was  not  done.  The  right  inference  from 
the  inaction  of  both  is,  that  it  was  meant  to  be  continued  until  it  had 
been  legislatively  changed.  .  .  .  We  think  it  was  continued  over  a 
ceded  conquest,  without  any  violation  of  the  Constitution  or  laws  of  the 
United  States,  and  that,  until  Congress  legislated  for  it,  the  duties  upon 
foreign  goods,  imported  into  San  Francisco,  were  legally  demanded 
and  lawfully  received  by  Mr.  Harrison,  the  collector  of  the  port,  who 


INSULAR  CASES  APPENDIX.  499 

received  his  appointmeat,  according  to  instructions  from  Washington, 
from  Governor  Mason.' 

"  Upon  this  point  tliat  case  differs  from  the  one  under  consideration  only 
in  the  particuhir  that  the  duties  were  levied  in  CVo.s.s  vs.  Harrison,  upon 
goods  imported  from  foreign  countries  into  California,  while  in  the 
present  case  tliey  were  imported  from  New  York,  a  port  of  tlie  con- 
quering country.  This,  however,  is  quite  immaterial.  The  United 
States  and  Porto  Rico  were  still  foreign  countries  with  respect  to  each 
other,  and  the  same  riglit  wliich  authorized  us  to  exact  duties  upon 
merchandise  imported  from  Porto  Rico  to  the  United  States  authorized 
tlie  military  commander  in  Porto  Rico  to  exact  duties  upon  goods  im- 
ported into  that  island  from  the  United  States.  The  fact  that,  notwith- 
standing the  military  occupation  of  the  United  States,  Porto  Rico  re- 
mained a  foreign  country  witliin  the  revenue  laws  is  establislied  by  the 
case  of  Fleminy  vs.  Page,  (9  How.  603, )  in  wliicli  we  held  that  tlie  capture 
and  occupation  of  a  Mexican  port  during  our  war  with  tliat  country  did 
not  make  it  a  part  of  the  United  States,  and  that  it  still  remained  a  foreign 
country  within  the  meaning  of  the  revenue  laws.  The  right  to  exact 
duties  upon  goods  imported  into  Porto  Rico  from  New  York  arises  from 
the  fact  that  New  York  was  still  a  foreign  country  with  respect  to  Porto 
Rico,  and  from  the  correlative  right  to  exact  at  New  York  duties  upon 
merchandise  imported  from  that  island. 

"  3.  Different  considerations  apply  with  respect  to  duties  levied  after 
the  ratification  of  the  treaty  and  the  cession  of  the  island  to  the  United 
States.  Porto  Rico  then  ceased  to  be  a  foreign  country,  and,  as  we  have 
just  held  in  De  Lima  vs.  Bidwell,  the  right  of  the  collector  of  New  York 
to  exact  duties  upon  imports  from  that  island  ceased  with  the  exchange 
of  ratifications.  We  have  no  doubt,  however,  that,  from  the  necessities 
of  the  case,  the  right  to  administer  the  government  of  Porto  Rico  con- 
tinued in  tlie  military  commander  after  the  ratification  of  the  treaty, 
and  until  further  action  by  Congress.  ( Cro.s.s  vs.  Harrison,  above  cited.) 
At  the  same  time,  while  the  right  to  administer  the  government  con- 
tinued, the  conclusion  of  the  treaty  of  peace  and  the  cession  of  the 
island  to  the  United  States  were  not  without  their  significance.  By 
that  act  Porto  Rico  ceased  to  be  a  foreign  country,  and  the  right  to  col- 
lect duties  upon  imports  from  that  island  ceased.  We  think  the  cor- 
relative right  to  exact  duties  upon  importations  from  New  York  to 
Porto  Rico  also  ceased.  The  spirit  as  well  as  the  letter  of  the  tariff 
laws  admit  of  duties  being  levied  by  a  military  commander  only  upon 
importations  from  foreign  countries;  and  while  his  power  is  necessarily 
despotic,  this  must  be  understood  rather  in  an  administrative  than  in  a 
legislative  sense.  While  in  legislating  for  a  conquered  country  he  may 
disregard  the  laws  of  that  country,  he  is  not  wholly  above  the  laws  of 
his  own.  For  instance,  it  is  clear  that  while  a  military  commander 
during  the  civil  war  was  in  the  occupation  of  a  Southern  port,  he  could 
impose  duties  upon  merchandise  arriving  from  abroad,  it  would  liardly 
be  contended  that  he  could  also  impose  duties  upon  merchandise  arriv- 
ing from  ports  of  his  own  country.  His  power  to  administer  would  be 
absolute,  but  his  power  to  legislate  would  not  be  without  certain  re- 


nOO  TREATY-MAKING  POWER  OF  THE  U.  S. 

strictions — in  other  words,  they  would  not  extend  bej'ond  the  neces- 
sities of  the  case.  Tlius  in  the  case  of  The  Admittance  ;  (Jccker  vs.  Mont- 
gomery, 13  How.  498, )  it  was  held  that  neitlier  the  President,  nor  the 
military  commander,  could  establish  a  court  of  prize,  competent  to 
take  jurisdiction  of  a  case  of  capture,  whose  judgments  would  be  con- 
clusive in  other  admiralty  courts.  It  was  said  that  the  courts  estab- 
lished in  Mexico  during  the  war  'were  nothing  more  than  agents  of 
the  military  power,  to  assist  in  preserving  order  in  the  conquered  ter- 
ritory, and  to  protect  the  inhabitants  in  their  persons  and  property, 
while  it  was  occupied  by  the  American  arms.  They  were  subject  to  the 
military  jjower,  aud  their  decisions  under  its  control,  whenever  the 
commanding  officer  thought  proper  to  interfere.  They  were  not  courts 
of  the  United  States,  and  had  no  right  to  adjudicate  upon  a  question  of 
prize  or  no  prize,'  although  Congress,  in  the  exercise  of  its  general 
authority  in  relation  to  the  national  courts,  would  have  power  to  validate 
their  action.     ( The  Grapeshot,  9  Wall.  129,  133. ) 

"  So,  too,  in  3/if  c/teii  vs.  Harmony,  (13  How.  115,)  it  was  held  that,  where 
the  plaintiff  entered  Mexico  during  the  war  with  that  country,  under  a 
permission  of  the  commander  to  trade  witii  the  enemy  and  under  the 
sanction  of  the  executive  power  of  the  United  States,  his  property  was 
not  liable  to  seizure  by  law  for  such  trading,  and  that  the  officer  di- 
recting the  seizure  was  liable  to  an  action  for  the  value  of  the  property 
taken.     To  the  same  effect  is  Mostyn  vs.  Fabrigas,  (1  Cowp.  161). 

"  In  Raymond  vs.  Thomas,  (91  U.  S.  712,)  a  special  order,  by  the  officer 
in  command  of  the  forces  in  the  State  of  South  Carolina,  annulling  a 
decree  rendered  by  a  court  of  chancery  in  that  State,  was  held  to  be  void. 
In  delivering  the  opinion,  Mr.  Justice  Swayne  observed:  'Whether 
Congress  could  have  conferred  the  power  to  do  such  an  act  is  not  the 
question  we  are  called  upon  to  consider.  It  is  an  unbending  rule  of  law, 
that  the  exercise  of  military  power,  where  the  rights  of  the  citizens  are 
concerned,  shall  never  be  pushed  beyond  what  the  exigency  requires.' 

"Without  questioning  at  all  the  original  validity  of  the  order  imposing 
duties  upon  goods  imported  into  Porto  Rico  from  foreign  countries,  we 
think  the  proper  construction  of  that  order  is,  that  it  ceased  to  apply 
to  goods  imported  from  the  United  States  from  the  moment  the  United 
States  ceased  to  be  a  foreign  country  with  respect  to  Porto  Rico,  and 
that  until  Congress  otherwise  constitutionally  directed,  such  merchan- 
dise was  entitled  to  free  entry. 

"  An  unlimited  power  on  the  part  of  the  Commander-in-Chief  to  exact 
duties  upon  imports  from  the  States  might  have  placed  Porto  Rico  in  a 
most  embarrassing  situation.  The  ratification  of  the  treaty  and  the  ces- 
sion of  the  island  to  us  severed  her  connection  with  Spain,  of  which  the 
island  was  no  longer  a  colony,  and  with  respect  to  which  she  had  be- 
come a  foreign  country.  The  wall  of  the  Spanish  tariff  was  raised  against 
her  exports,  the  wall  of  the  military  tariff  against  her  imports,  from 
the  mother  country.  She  received  no  compensation  from  her  new  rela- 
tions with  the  United  States.  If  her  exports,  upon  arriving  there,  were 
still  subject  to  the  same  duties  as  merchandise  arriving  from  other  foreign 
countries,  while  her  imports  from  the  United  States  were  subjected  to 


INSULAR  CASES  APPENDIX.  501 

duties  prescribed  by  tlie  CoTtimander-in-Chief,  she  would  be  placed  in 
a  position  of  practical  isolation,  which  could  not  fail  to  be  disastrous  to 
the  business  aud  finances  of  an  island.  It  had  no  manufactures  or  mar- 
kets of  its  own,  aud  was  dependent  upon  the  markets  of  other  countries 
for  the  sale  of  her  productions  of  coffee,  sugar  and  tobacco.  In  our 
opinion  the  authority  of  the  President  as  Commander-in-Chief  to  exact 
duties  upon  imports  from  the  United  States  ceased  with  the  ratification 
of  the  treaty  of  peace,  and  her  right  to  the  free  entry  of  goods  from  the 
ports  of  the  United  States  continued  until  Congress  should  constitution- 
ally legislate  upon  the  subject." 

The  judgment  of  the  Circuit  Court  was  reversed. 

DISSENTING  OPINIONS  DOOLEY  VS.  UNITED  STATES. 

The  four  Justices  who  dissented  did  so  wholly  in  so  far  as  the  court 
decided  that  the  duties  collected  after  the  ratification  were  illegal,  fol- 
lowing the  reasoning  laid  down  in  Mr.  Justice  White's  opinion  in 
Downes  v.s.  Bidwcll,  and  following  the  doctrine  laid  down  in  Fleming 
vs.  Page.  The  view  was  also  taken  that  the  tariff  laws  of  the  United 
States  did  not  apply  to  Porto  Rico  without  congressional  action;  in 
fact,  he  said  (182  U.  S.  p.  242):  "  I  cannot  conceive  that  under  the  pro- 
visions of  the  Constitution  conferring  upon  Congress  the  power  to  raise 
revenue  that  consequences  such  as  would  flow  from  immediately  put- 
ting in  force  in  Porto  Rico  the  revenue  laws  of  the  United  States  could 
constitutionally  be  brought  about  without  affording  to  the  Congress  the 
opportunity  to  adjust  the  revenue  laws  of  the  United  States  to  meet  the 
new  situation." 

VI. 
Henry  W.  Dooley,  Louis  C.  Smith,  and  Charles  W.  Ogden,  Trad- 
ing AS  Copartners  Under  the  Firm  Name  of  Dooley,  Smith  & 
Co.,  Plaintiffs  in  Error,  vs.  The  United  States,  Action  No.  2. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York. 

No.  502,  October  Term,  1900.  Tanscript  filed  December  10,  1900. 
(Ins.  Cas.  Rec.  p.  847.) 

Same  counsel  as  in  action  No.  1.  Seep.  494,  ante,  of  this  Appendix,  and 
same  procedure  followed.  The  only  difference  between  this  case  and 
action  No.  1,  is  that  the  duties  were  exacted  after  the  Foraker  Act 
went  into  effect,  while  the  duties  in  other  cases  were  exacted  prior 
thereto.  One  of  the  legal  questions  raised  in  the  argument  of  this  case 
was  whether  the  collection  of  duties  in  Porto  Rico  on  goods  brought 
there  from  a  State  was  equivalent  to  an  export  tax  and  therefore  pro- 
hibited by  the  Constitution. 

The  same  briefs  that  were  filed  in  action  No.  1,  were  also  filed  in  this 
action.  An  additional  brief  for  the  plaintiff  in  error  was  filed  in  this 
action  by  Wm.  G.  Choate  and  Joseph  Lacrocque,  Jr.,  of  counsel 


502  TKEATY-MAKTNG  POWER  OF  THE  IT.  S. 

(Ins.  Cas.  Rec.  pp.  8G1-870,  and  for  analysis  see  Table  of  Contents,  Ins. 
Cas.  Kec.  p.  xxxi). 
This  case  has  not  yet  been  decided,  November  30,  1901. 

VII. 
Carlos  Armstrong,  AppELiiANT,  vs.  Tue  United  States,  Appellee. 

Appeal  from  the  United  States  Court  of  Claims. 

No.  509,  October  1900.  Transcript  filed  December  15,  1900.  (Ins. 
Term  Cas.  Rec.  p.  871.) 

For  the  plaintiff,  Appellant,  John  C.  Chaney  and  Alphonzo  Hart, 
Attorneys,  Washington,  D.  C.  John  G,  Carlisle  and  Charles  C. 
Leeds,  of  counsel.  New  York. 

For  the  United  States  in  the  Court  of  Claims,  L.  A.  Pradt,  Assistant 
Attorney  General. 

In  the  Supreme  Court,  John  W.  Griggs,  Attorney  General,  and  John 
K.  Richards,  Solicitor  General. 

This  action  was  commenced  November  13,  1900,  by  petition  in  the 
Court  of  Claims  to  recover  duties  paid  in  Porto  Fdco  on  merchandise 
brought  from  United  States  ports.  The  petition  is  on  p.  871,  and  the 
schedule  of  duties  paid  is  on  p.  875,  of  the  Ins.  Cas.  Rec.  The  duties 
were  paid  between  August  22,  1898,  and  December  6,  1899. 

The  United  States  demurred  on  the  grounds  of  lack  of  jurisdiction 
of  the  Court  of  Claims  to  try  the  cause,  and  because  the  petition  did 
not  allege  facts  sufficient  to  constitute  a  cause  of  action. 

The  demurrer  was  sustained  and  judgment  entered  December  15,  1900 
(Ins.  Cas.  Rec.  p.  876),  dismissing  the  petition.  An  appeal  was  allowed 
to  the  Supreme  Court. 

The  appeal  was  advanced  and  argued  simultaneously  with  De  Lima  vs. 
Bidivfll,  and  on  the  same  briefs  and  arguments  ft)r  the  United  States. 
(See  pp.  4(>9,  et  seq.,  ante,  of  this  Appendix.) 

Two  separate  briefs  for  the  appellants  were  filed  in  the  Supreme 
Court.  (Ins.  Cas.  Rec,  pp.  879-930.  For  analysis  and  list  of  authori- 
ties cited  see  Table  of  Contents  Ins.  Cas.  Rec,  pp.  xxxi-xxxiii.)  A 
large  part  of  these  briefs  was  devoted  to  the  questions  of  jurisdiction 
of  the  Court  of  Claims  to  hear  cases  of  this  nature. 

The  decision  in  this  case  was  controlled  by  the  decision  in  Booley  vs. 
United  States,  (182  U.  S.  222,)  and  no  separate  opinion  was  delivered. 

On  May  27,  1901,  Mr.  Justice  Brown  delivered  the  opinion  of  the 
court  as  follows  (182  U.  S.  244): 

"This  case  is  controlled  by  the  case  of  Donley  vs.  United  States,  (No. 
501,)  just  decided.  So  far  as  the  duties  were  exacted  upon  goods  im- 
ported prior  to  the  ratification  of  the  treaty  of  April  11.  1899,  they  were 
properly  exacted.     So  far  as  they  were  imposed  upon  importations  after 


INStTLAR  CASES  APPENDIX.  503 

that  date  and  prior  to  December  5,  1899,  plaintiff  is  entitled  to  recover 
tbem  back. 

"  The  judgment  of  the  Court  of  Claims  is  therefore  reversed  and  the 
case  remanded  to  that  court  for  further  proceedings  not  inconsistent 
with  this  opinion." 

VIII. 

Chkistian   Huus,   Appellant,   vs.   New  York  and   Porto   Rico 
Steamship  Company. 

The  Porto  Rico  Pilotage  Case. 

On  a  certificate  for  the  United  States  Circuit  Court  of  Appeals  for  the 
Second  Circuit. 

No.  514.  October  Term,  1900.  Transcript  filed  December  18,  1900. 
(Ins.  Cas.  Rec.  p.  931.) 

For  the  libellant,  appellant. 

Lindsay,  Kremer,  Kalish  &  Palmer,  27  William  St.,  New  York, 
Proctors,  for  libellants.  William  Lindsay,  of  counsel,  in  the  Supreme 
Court. 

For  the  respondents,  appellee. 

Curtis,  Mallet-Prevost  and  Colt,  30  Broad  St.,  New  York  City. 

William  Edmond  Curtis  and  F.  Kingsbury  Curtis,  of  counsel. 

In  this  case  a  pilot  libeled  an  American  built  steamship  belonging  to 
a  New  York  corporation  for  the  amount  of  his  pilotage,  his  services  hav- 
ing been  refused  on  the  ground  that  he  was  entitled  to  pilotage  as 
the  vessel  was  not  engaged  in  a  coastwise  trade  and  was  therefore  re- 
quired to  take  pilot.  The  vessel  was  enrolled  and  licensed  for  the  coast- 
ing trade  between  New  York  and  Porto  Rico.  The  libel  was  dismissed 
by  the  District  Court  (105  Fed.  Rep.  74) ;  an  appeal  was  taken  to  the  Cir- 
cuit Court  of  Appeals  which  certified  the  following  questions  to  the 
Supreme  Court  for  instructions  (182  U.  S.  392): 

"  1.  Since  the  proclamation  of  the  treaty  of  peace  between  the  United 
States  and  the  Kingdom  of  Spain,  and  the  passage  of  the  act  of  Con- 
gress entitled  '  An  act  temporarily  to  provide  revenues  and  civil  govern- 
ment for  Porto  Rico,  and  for  other  purposes,'  (approved  April  12,  1900,) 
do  Porto  Rican  ports  remain  foreign  ports  in  the  sense  in  which  those 
words  are  used  in  the  statutes  of  the  State  of  New  York  regulating 
pilotage  ? 

"2.  Are  vessels  engaged  in  trade  between  Porto  Ricim  ports  and  ports 
of  the  United  States  engaged  in  the  coasting  trade  in  the  s(!nse  in  whicli 
those  words  are  used  in  the  statutes  of  the  State  of  New  York  regulat- 
ing pilotage? 

"3.  Are  steam  vessels  engaged  in  trade  between  Poito  Rican  ports 
and  ports  of  the  United  States  coastwise  steam  vessels  in  the  sense  in 


504  TREATY-MAKTXG  POWEK  OF  THE  U.  S. 

■which  those  words  are  used  in  section  4444  of  the  Revised  Statutes  of 
the  Uuited  States  ?  " 

The  case  was  advanced  in  the  Supreme  Court  and  argued  January  11, 
1901.  William  Lixusay  argued  for  the  appellants  and  W.  F.  KiNQS- 
BUKY  CuKTis,  fur  tiie  appellee. 

Fur  briefs  in  this  case  see  Ins.  Cas.  Kec.  pp.  937-1013,  and  for  analysis 
and  list  of  authorities  cited,  See  Table  of  Contents  Ins.  Cas.  Kec.  pp. 
xxxiv-xxxvii.     This  case  was  decided  May  27,  1901. 

OPINION  BROWN,  J.,  IN  PILOTAGE  CASE. 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court  and  answered 
the  second  and  third  questions  in  the  affirmative  which  rendered  an 
answer  to  the  first  question  unnecessary. 

The  opinion  is  brief  and  defines  the  expressions  "  foreign  ports," 
"foreign  commerce"  and  "coastwise  trade,"  holding  that  the  words 
"coasting  trade  "  are  intended  to  include  domestic  trade  in  the  United 
States  upon  other  than  interior  waters,  and  that  vessels  engaged  in 
trade  between  Xew  York  and  Porto  Rico  are  in  the  coasting  trade,  and 
not  subject  to  pilotage  laws  relating  to  foreign  vessels. 

After  discussing  the  pilotage  laws  the  opinion  says  (182  U.  S.  p.  39-5): 
"  As  the  statement  of  facts  connected  with  the  question  certified  shows 
that  the  Ponce  was  an  American  built  steamship,  sailing  from  New 
York,  belonging  to  a  New  York  corporation,  enrolled  and  licensed  for 
the  coasting  trade,  navigated  by  a  master  duly  licensed  to  act  as  pilot 
in  the  bay  and  harbor  of  New  York,  under  the  laws  of  the  United  States, 
and  was  engaged  in  trade  between  the  Island  of  Porto  Rico  and  the 
port  of  New  York,  the  only  question  remaining  to  be  considered  is 
whether  she  was  a  coastioise  seagoing  steam  vessel  under  Rev.  Stat. 
sec.  4401,  and  actually  employed  in  the  coasting  trade  by  way  of  Sandy 
Hook  under  sec.  2111  of  the  New  York  Consolidation  Act. 

"Under  the  commercial  and  navigation  laws  of  the  United  States 
merchant  vessels  are  divisible  into  two  classes:  First,  vessels  registered 
pursuant  to  Rev.  Stat.,  sec.  4131.  These  must  be  wholly' owned,  com- 
manded and  officered  by  citizens  of  the  United  States,  and  are  alone 
entitled  to  engage  in  foreign  trade;  and,  second,  vessels  enrolled  and 
licensed  for  the  coasting  trade  or  fisheries.  Rev.  Stat.  sec.  4311.  These 
may  not  engage  in  foreign  trade  under  penalty  of  forfeiture.  Sec.  4.337. 
This  class  of  vessels  is  also  engaged  in  navigation  upon  the  Great  Lakes 
and  the  interior  waters  of  the  country — in  other  words,  they  are  engaged 
in  domestic  instead  of  foreign  trade. 

"The  words  '  coasting  trade,'  as  distinguishing  this  class  of  vessels, 
seem  to  have  been  selected  because  at  that  time  all  the  domestic  com- 
merce of  the  country  was  either  interior  commerce,  or  coastwise,  be- 
tween ports  upon  the  Atlantic  or  Pacific  coasts,  or  upon  islands  so  near 
thereto,  and  belonging  to  the  several  States,  as  properly  to  constitute  a 
part  of  the  coast.  Strictly  speaking  Porto  Rico  is  not  such  an  island, 
as  it  is  not  only  situated  some  hundreds  of  miles  from  the  nearest  port 
on  the  Atlantic  coast,  but  had  never  belonged  to  the  United  States,  or 
any  of  the  States  composing  the  Union.     At  the  same  time  trade  with 


INSTJLAR  CASES  APPENDIX.  505 

that  island  is  properly  a  part  of  the  domestic  trade  of  the  country  since 
tlie  treaty  of  annexation,  and  is  so  recognized  by  tlie  Porto  Rican  or 
Foraker  act.  By  section  9  the  Commissioner  of  Navigation  is  required 
to  '  make  such  regulations  ...  as  he  may  deem  expedient  for  the 
nationalization  of  all  vessels  owned  by  the  inhabitants  of  Porto  Rico  ou 
April  11,  1899,  .  .  .  and  for  the  admission  of  the  same  to  all  the 
benefits  of  the  coasting  trade  of  the  United  States;  and  the  coasting 
trade  between  Porto  Rico  and  the  United  States  shall  be  regulated  in 
accordance  with  the  provisions  of  law  applicable  to  such  trade  between 
any  two  great  coasting  districts  of  the  United  States.'  By  this  act  it 
was  evidently  intended,  not  only  to  nationalize  all  Porto  Rican  vessels 
as  vessels  of  the  United  States,  and  to  admit  them  to  the  benefits  of 
their  coasting  trade,  but  to  place  Porto  Rico  substantially  upon  the 
coast  of  the  United  States,  and  vessels  engaged  in  trade  between  that 
island  and  the  continent,  as  engaged  in  the  coasting  trade.  This  was 
the  view  taken  by  the  executive  officers  of  the  government  in  issuing  an 
enrollment  and  license  to  the  Ponce,  to  be  employed  in  carrying  on  the 
coasting  trade,  instead  of  treating  her  as  a  vessel  engaged  in  foreign 
trade. 

"That  the  words  'coasting  trade'  are  not  intended  to  be  strictly  lim- 
ited to  trade  between  ports  in  adjoining  districts  is  also  evident  from  Rev. 
Stat.  sec.  4358,  wherein  it  is  enacted  that  'the  coasting  trade  between 
the  territory  ceded  to  the  United  States  by  the  Emperor  of  Russia,  and 
any  other  portion  of  the  United  States,  shall  be  regulated  in  accordance 
with  the  provisions  of  law  applicable  to  such  trade  between  any  two 
great  districts.'  These  great  districts  were,  for  the  more  convenient 
regulation  of  the  coasting  trade,  divided  by  the  act  of  March  2,  1819, 
(3  Stat.  492,  c.  48)  as  amended  by  act  of  May  7,  1822,  (3  Stat.  684;  Rev. 
Stat.  sec.  434S,)  as  follows:  'The  first  to  include  all  the  collection  dis- 
tricts on  the  seacoast  and  navigable  rivers  between  the  eastern  limits  of 
the  United  States  and  the  southern  limits  of  Georgia;  the  second  to  in- 
clude all  the  collection  districts  on  the  seacoast  and  navigable  rivers 
between  the  river  Perdido  and  the  Rio  Grande;  and  the  third  to  include 
all  the  collection  districts  on  the  seacoast  and  navigable  rivers  between 
the  southern  limits  of  Georgia  and  the  river  Perdido.'  A  provision  sim- 
ilar to  that  for  the  admission  of  the  Territory  of  Alaska  was  also  adopted 
in  the  act  to  provide  a  government  for  the  Territory  of  Hawaii,  (31 
Stat.  141,  sec.  98,)  which  provides  that  all  vessels  carrying  Hawaiian 
registers  on  August  12,  1888,  and  owned  by  citizens  of  the  United 
States  or  citizens  of  Hawaii,  '  shall  be  entitled  to  be  registered  as  Amer- 
ican vessels,  .  .  .  and  the  coasting  trade  between  the  islands  afore- 
said and  any  other  portion  of  the  United  States  shall  be  regulated  in 
accordance  with  the  provisions  of  law  api)licable  to  such  trade  be- 
tween any  two  great  coasting  districts.' 

"  This  use  of  the  words  '  coasting  trade '  indicates  very  clearly  that 
the  words  were  intended  to  include  the  domestic  trade  of  the  United 
States  upon  other  than  interior  waters.  Tiie  District  Court  was  correct 
in  holding  that  the  Ponce  was  engaged  in  the  coasting  trade,  and  that 
the  New  York  pilotage  laws  did  not  apply  to  her. 


506  TREATV-lsrAKTNrr  roWKT^  OF  THE  U.  S. 

"The  second  nnd  third  questions  arc  therefore  answered  in  the  affirm- 
ative.    An  answer  to  the  first  question  becomes  unnecessary." 

IX. 
George  W.  Ceossmax  et  al.,  Appellants,  vs.  The  United  States. 

The  Hawaiian  Islands  Case. 
Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York. 

No.  515.  October  Term,  1900.  Transcript  filed  December  18,  1900. 
(Ins.  Cas.  Rec.  p.  1015.) 

For  the  appellants: 

CuKiE,  Smith  &  Maxwell,  20  William  St.,  New  York  City.  Chaeles 
Curie,  W.  Wickuam  Smith,  of  counsel. 

For  the  United  States: 

In  the  Circuit  Court,  Henry  L.  Burnett,  United  States  District  At- 
torney, and  Henry  C.  Platt,  Assistant.  In  the  Supreme  Court,  John  W. 
Griggs,  Attorney  General,  and  John  K.  Richards,  Solicitor  General. 

The  action  was  brought  to  recover  duties  paid  in  New  York  on  mer- 
chandise brought  from  the  Hawaiian  Islands  after  July  7,  1898,  the  date 
of  the  joint  resolution  of  Congress  annexing  the  Hawaiian  Islands. 

The  protest  of  the  importers  was  first  heard  and  decided  adversely  to 
them  by  the  Board  of  General  Appraisers,  July  27,  1900,  Somerville 
Gen'l  App'r,  writing  the  opinion  (Ins.  Cas.  Rec.  p.  1021). 

From  this  decision  the  importers  appealed  to  the  Circuit  Court  of  the 
United  States  under  the  Customs  Administrative  Act.  The  decision  was 
affirmed,  Townsend.  J.,  December  13,  1900  (Ins.  Cas.  Rec.  p.  1023, 
opinion  in  full,  also  reported  in  105  Fed.  Rep.  608). 

An  appeal  was  taken  to  the  Supreme  Court  (Ins.  Cas.  Rec.  p.  1027)  a 
motion  to  advance  the  cause  was  granted  and  the  case  was  argued  Jan- 
uary 14  and  15,  1901. 

The  briefs  and  arguments  for  the  United  States  were  the  same  as  those 
in  De  Lima  vs.  BiclweU,  (see  pp.  469,  et  seq.,  ante,  of  this  Appendix.  For 
Solicitor-General's  argument,  see  Ins.  Cas.  Rec.  p.  1063.  For  the  brief 
and  arguments  for  appellants,  see  Ins.  Cas.  Rec.  pp.  1033-1061,  and  for 
analysis  and  list  of  authorities  cited,  see  Table  of  Contents,  Ins.  Cas. 
Rec.   pp.   xxviii-xxxix). 

This  case  was  decided  on  May  27,  1901  (182  U.  S.  221).  The  opinion 
whicli  is  only  ten  lines  was  delivered  by  Mr.  Justice  BROwn  and  is  also 
entitled  in  the  case  of  Goetze  vs.  United  States,  (see  pp.  465,  etseq.,  ante, 
of  this  appendix)  as  follows: 

"  As  the  sole  question  presented  by  the  record  in  these  cases  was 
whether  Porto  Rico  and  the  Hawaiian  Islands  were  foreign  countries 
within  the  meaning  of  the  tariff  laws,  we  must  hold,  for  the  reasons 


mSTILAR  CASES  APPENDIX.  507 

stated  in  Be  Lima  vs.  Bidwdl,  just  decided,  that  the  board  of  general 
appraisers  had  no  jurisdictit)a  of  the  cases. 

"  Tlie  judgineuts  of  the  Circuit  Court  are  therefore  reversed,  and  the 
cases  remauded  to  that  court  with  instructions  to  reverse  the  action  of 
the  board  of  general  appraisers." 

Protocol  of  Agreement  betvfeen  the  United  States  and  Spain, 
Embodying  the  Terms  of  a  Basis  for  the  Establishment  of 
Peace  between  the  two  Countries. 

[Signed  at  Washington  in  English  and  French,  August  12,  1898.    30  U.  S.  Stat,  at  Large, 
1742.]    The  English  text  is  as  follows: 

PROTOCOL. 
William  R.  Day,  Secretary  of  State  of  the  United  States,  and  His 
Excellency  Jules  Cambon,  Ambassador  Extraordinary  and  Plenipoten- 
tiary of  the  Republic  of  France  at  Washington,  respectively  possessing 
for  this  purpose  full  authority  from  the  Government  of  the  United 
States  and  the  Government  of  Spain,  have  concluded  and  signed  the 
following  articles,  embodying  the  terras  on  which  the  two  Governments 
have  agreed  in  respect  to  the  matters  hereinafter  set  forth,  having  in 
view  the  establishment  of  peace  between  the  two  countries,  that  is  to 
say: 

Article  I. 
Spain  will  relinquish  all  claim  of  sovereignty  over  and  title  to  Cuba. 

Article  II. 
Spain  will  cede  to  the  United  States  the  island  of  Porto  Rico  and 
other  islands  now  under  Spanish  sovereignty  in  the  West  Indies,  and 
also  an  island  in  the  Ladrones  to  be  selected  by  the  United  States. 

Article  III. 
The  United  States  will  occupy  and  hold  the  city,  bay  and  harbor  of 
Manila,  pending  the  conclusion  of  a  treaty  of  peace  wliich  shall  deter- 
mine the  control,  disposition  and  government  of  the  Philippines. 

Article  IV. 
Spain  will  immediately  evacuate  Cuba,  Porto  Rico  and  other  islands 
now  under  Spanish  sovereignty  in  the  West  Indies;  and  to  this  end 
each  Government  will,  within  ten  days  after  the  signing  of  this  proto- 
col, appoint  Commissioners,  and  the  Commissioners  so  appointed  shall, 
within  thirty  days  after  the  signing  of  this  protocol,  meet  at  Havana 
for  the  purpose  of  arranging  and  carrying  out  the  details  of  the  afore- 
said evacuation  of  Cuba  and  the  adjacent  Spanish  islands;  and  each 
Government  will,  within  ten  days  after  the  signing  of  this  protocol, 
also  appoint  other  Commissioners,  who  shall,  within  tliirty  days  after 
the  signing  of  this  protocol,  meet  at  San  Juan,  in  Porto  Rico,  for  the 
purpose  of  arranging  and  carrying  out  the  details  of  the  aforesaid  evac- 
uation of  Porto  Rico  and  other  islands  now  under  Spanish  sovereignty 
in  the  West  Indies. 


508  TREATY-MAKING  POWER  OF  THE  U.  S. 

AlITICLE  V. 

The  United  States  and  Spain  will  each  appoint  not  more  than  five 
comraissionors  to  treat  of  peace,  and  the  commissioners  so  appointed 
shall  meet  at  Paris  not  later  than  October  1,  1898,  and  proceed  to  the 
uenotiation  and  conclusion  of  a  treaty  of  peace,  which  treaty  shall  he 
subject  to  ratilication  according  to  tiie  respective  constitutional  forms 
of  the  two  countries. 

Akticle  VI. 

Upon  the  conclusion  and  signing  of  this  protocol,  hostilities  between 
the  two  countries  shall  be  suspended,  and  notice  to  that  effect  shall  be 
given  as  soon  as  possible  by  each  Government  to  the  commanders  of 
its  military  and  naval  forces. 

Done  at  Washington  in  duplicate,  in  English  and  in  French,  by  the 
Undersigned,  who  have  hereunto  set  their  hands  and  seals,  the  12th 
day  of  August,  1898. 

[seal]  William  R.  Day. 

[seal]  Jules  Cambon. 

Treaty  of  Peace  between  the  United  States  of  America  and 

THE  Kingdom  of  Spain. 
Signed  at  Paris,  December  10,  1898 ;  ratification  advised  by  the  Senate, 
February  6,  1899  ;  ratified  by  the  President  February  6,  1899  ;  ratified 
by  her  Majesty  the  Queen  Regent  of  Spain,  March  19,  1899 ;  ratifica- 
tions exchanged  at  Washington  April  11,  1899  ;  proclaimed,  Washing- 
ton, April  11,  1899;  [U.  S.  Stats.  Vol.  SO,}).  1754,  U.  S.  Treaties  in 
Force,  1899,  p.  595). 

This  treaty  is  in  English  and  Spanish;  the  English  text  is  as  follows: 

The  United  States  of  America  and  Her  Majesty  the  Queen  Regent  of 

Spain,  in  the  name  of  her  august  son  Don  Alfonso  XIII,  desiring  to  end 

the  state  of  war  now  existing  between  the  two  countries,  have  for  that 

purpose  appointed  as  plenipotentiaries: 

The  President  of  the  United  States, 

William  R.  Day,  Cushman  K.  Davis,  William  P.  Frye,  George  Gray, 
and  Whitelaw  Reid,  citizens  of  the  United  States; 
And  Her  Majesty  the  Queen  Regent  of  Spain, 

Don  Eugenio  Montero  Rios,  president  of  the  senate,  Don  Buenaven- 
tura fie  Abarzuza,  senator  of  the  Kingdom  and  ex-minister  of  the  Crown; 
Don  Jose  de  Garnica,  deputy  to  the  Oortes  and  associate  justice  of  the 
supreme  court;  Don  Wenceslao  Ramirez  de  Villa-Urrutia,  envoy  extra- 
ordinary and  minister  plenipotentiary  at  Brussels,  and  Don  Rafael 
Cerero,  general  of  division; 

Who,  having  assembled  in  Paris,  and  having  exchanged  their  full 
powers,  which  were  found  to  be  in  due  and  proper  form,  have,  after  dis- 
cussion of  the  matters  before  them,  agreed  upon  the  following  articles: 

Article  I. 
Spain  relinquishes  all  claim  of  sovereignty  over  and  title  to  Cuba. 
And  as  the  island  is,  upon  its  evacuation  by  Spain,  to  be  occupied  by 


INSULAR  CASES  APPENDIX.  509 

the  Uaited  States,  the  United  States  will,  so  long  as  such  occupation 
shall  last,  assume  and  discharge  the  obligations  that  may  undex"  inter- 
national law  result  from  the  fact  of  its  occupation,  for  the  protection 
of  life  and  property. 

Article  II. 
Spain  cedes  to  the  United  States  the  island  of  Porto  Rico  and  other 
islands  now  under  Spanish  sovereignty  in  the  West  Indies,  and  the 
island  of  Guam  in  the  Marianas  or  Ladrones. 

Article  III. 

Spain  cedes  to  the  United  States  the  archipelago  known  as  the  Phil- 
ippine Islands,  and  comprehending  the  islands  lying  within  the  follow- 
ing line: 

A  line  running  from  west  to  east  along  or  near  the  twentieth  parallel 
of  north  latitude,  and  through  the  middle  of  the  navigable  channel  of 
Bachi,  from  the  118th  to  the  127th  degree  meridian  of  longitude  east  of 
Greenwich,  thence  along  the  127th  degree  meridian  of  longitude  east 
of  Greenwich  to  the  parallel  of  4'^  45'  north  latitude,  thence  along  the 
parallel  of  4°  45'  north  latitude  to  its  intersection  with  the  meridian  of 
longitude  119°  35'  east  of  Greenwich,  thence  along  the  meridian  of  longi- 
tude 119°  35'  east  of  Greenwich  to  the  parallel  of  latitude  1°  40'  north; 
thence  along  the  parallel  of  latitude  of  7°  40'  north  to  its  intersection 
with  the  llfjth  degree  meridian  of  longitude  east  of  Greenwich,  thence 
by  a  direct  line  to  the  intersection  of  the  10th  degree  parallel  of  north 
latitude  with  the  118th  degree  meridian  of  longitude  east  of  Greenwich, 
and  thence  along  the  llSth  degree  meridian  of  longitude  east  of  Green- 
wich to  the  point  of  beginning. 

(In  the  original  tlie  numerals  are  written  out  in  full.) 

The  United  States  will  pny  to  Spain  the  sum  of  twenty  million  dol- 
lars ($20,000,000)  within  three  months  after  the  exchange  of  the  ratifi- 
cations of  the  present  treaty. 

Article  IV. 
The  United  Slates  will,  for  the  terra  of  ten  years  from  the  date  of 
the  exchange  of  the  ratifications  of  the  present  treaty,  admit  Spanish 
ships  and  merchandise  to  the  ports  of  the  Philippine  Islands  on  the 
same  terms  as  ships  and  merchandise  of  the  United  States. 

Article  V. 

The  United  States  will,  upon  the  signature  of  the  present  treaty,  send 
back  to  Spain,  at  its  own  cost,  the  Spanish  soldiers  taken  as  prisoners 
of  war  on  the  capture  of  Manila  by  the  American  forces.  The  arms  of 
the  soldiers  in  question  shall  be  restored  to  them. 

Spain  will,  upon  the  exchange  of  the  ratifications  of  the  present 
treaty,  proceed  to  evacuate  the  Philippines,  as  well  as  the  island  of 
Guam,  on  terms  similar  to  tliose  agreed  upon  by  the  Commissioners 
appointed  to  arrange  for  the  evacuation  of  Porto  Rico  and  other  islands 


510  TKEATV-MAKING  POWiat  OF  THE  U,  S. 

iu  the  West  Indies,  under  the  Protocol  of  August  12,  1898,  which  is  to 
contiuuo  iu  force  till  its  provisions  are  completely  executed. 

The  time  within  which  tlie  evacuation  of  the  Philippine  Islands  and 
Guam  shall  be  completed  shall  be  fixed  by  the  two  Governments. 
Stands  of  colors,  uncaptured  war  vessels,  small  arms,  guns  of  all  cali- 
bres, with  their  carriages  and  accessories,  powder,  ammunition,  live- 
stock, and  materials  and  supplies  of  all  kinds,  belonging  to  the  land 
and  naval  forces  of  Spain  in  the  Philippines  and  Gaum,  remain  the 
property  of  Spain.  Pieces  of  heavy  ordnance,  exclusive  of  field  artil- 
lery, iu  the  fortifications  and  coast  defences,  shall  remain  in  their  em- 
placements for  the  term  of  six  montlis,  to  be  reckoned  from  the  ex- 
change of  ratifications  of  the  treaty;  and  the  United  States  may,  in 
the  meantime,  purchase  such  material  from  Spain,  if  a  satisfactory 
agreement  between  the  two  Governments  ou  the  subject  shall  be 
reached. 

Akticle  VI. 

Spain  will,  upon  the  signature  of  the  present  treaty,  release  all  prison- 
ers of  war,  and  all  persons  detained  or  imprisoned  for  political  offences, 
in  connection  with  the  insurrections  in  Cuba  and  the  Philipiiines  and  the 
war  with  the  United  States. 

Reciprocally,  the  United  States  will  release  all  persons  made  pi'ison- 
ers  of  war  by  the  American  forces,  and  will  undertake  to  obtain  the 
release  of  all  Spanish  prisoners  in  the  hands  of  the  insurgents  in  Cuba 
and  the  Philippines. 

The  Government  of  the  United  States  will  at  its  own  cost  return  to 
Spain  and  the  Government  of  Spain  will  at  its  own  cost  return  to  the 
United  States,  Cuba,  Porto  Rico,  and  the  Philippines,  according  to  the 
situation  of  their  respective  homes,  prisoners  released  or  caused  to  be 
released  by  them,  respectively,  under  this  article. 

Article  VII. 

The  United  States  and  Spain  mutually  relinquish  all  claims  for  in- 
demnity, national  and  individual,  of  every  kind,  of  either  Government, 
or  of  its  citizens  or  subjects,  against  the  other  Government,  that  may 
have  arisen  since  the  beginning  of  the  late  insurrection  in  Cuba  and 
prior  to  the  exchange  of  ratifications  of  the  present  treaty,  including 
all  claims  for  indemnity  for  the  cost  of  the  war. 

The  United  States  will  adjudicate  and  settle  the  claims  of  its  citizens 
against  Spain  relinquished  in  this  article. 

Article  VIII. 
In  conformity  with  the  provisions  of  Articles  I,  II,  and  III  of  this 
treaty,  Spain  relinquishes  in  Cuba,  and  cedes  in  Porto  Rico  and  other 
islands  in  the  West  Indies,  in  the  island  of  Guam,  and  in  the  Philip- 
pine Archipelago,  all  the  buildings,  wharves,  barracks,  forts,  struc- 
tures, public  highways  and  other  immovable  property  which,  in  con- 
formity with  law,  belong  to  the  public  domain,  and  as  such  belong  to 
the  Crown  of  Spain. 


INSULAR  CASES  APPENDIX.  511 

And  it  is  hereby  declared  tliat  the  relinqnishmeut  or  cession,  as  the 
case  may  be,  to  which  the  preceding  paragraph  refers,  cannot  in  any 
respect  impair  the  property  or  rights  which  bylaw  belong  to  the  peace- 
ful possession  of  property  of  all  kinds,  of  provinces,  municipalities, 
public  or  private  establishments,  ecclesiastical  or  civic  bodies,  or  any 
other  associations  having  legal  capacity  to  acquire  and  possess  prop- 
erty in  the  aforesaid  territories  i-enounced  or  ceded,  or  of  private  in- 
dividuals, of  whatsoever  nationality  such  individuals  may  be. 

Tlie  aforesaid  relinquishment  or  cession,  as  tlie  case  maybe,  includes 
all  documents  exclusively  referring  to  the  sovereignty  relinquished  or 
ceded  that  may  exist  in  the  archives  of  the  Peninsula.  Where  any 
document  in  such  archives  only  in  part  relates  to  said  sovereignty,  a 
copy  of  such  part  will  be  furnished  whenever  it  shall  be  requested.  Like 
rules  shall  be  reciprocally  observed  in  favor  of  (Spain  in  respect  of  docu- 
ments in  the  archives  of  the  islands  above  referred  to. 

In  the  aforesaid  relinquisliraent  or  cession,  as  the  case  may  be,  are 
also  included  such  rights  as  the  Crown  of  Spain  and  its  authorities 
possess  in  respect  of  the  official  archives  and  records,  executive  as 
well  as  judicial,  in  the  islands  above  referred  to,  which  relate  to  said 
islands  or  the  lights  and  property  or  their  inhabitants.  Such  archives 
and  records  shall  be  carefully  preserved,  and  private  persons  shall 
without  distinction  have  the  right  to  require,  in  accordance  with  law, 
authenticated  copies  of  the  contracts,  wills  and  other  instruments 
forming  part  of  notorial  protocols  or  files,  or  which  may  be  contained 
in  the  executive  or  judicial  archives,  be  the  latter  in  Spain  or  in  the 
islands  aforesaid. 

Article  IX. 

Spanish  subjects,  natives  of  the  Peninsula,  residing  in  the  territory 
over  which  Spain  by  the  present  treaty  relinquishes  or  cedes  her  sov- 
ereignty, may  remain  in  such  territory  or  may  remove  therefrom,  re- 
taining in  either  event  all  their  rights  of  property,  including  the  riglit 
to  sell  or  dispose  of  such  property  or  of  its  proceeds;  and  they  shall 
also  have  the  right  to  carry  on  their  industry,  commerce  and  profes- 
si(ms,  being  subject  in  respect  thereof  to  such  laws  as  are  applicable  to 
other  foreigners.  In  case  they  remain  in  the  territory  they  may  pre- 
serve their  allegiance  to  the  Crown  of  Spain  by  making,  before  a  court 
of  record,  within  a  year  from  the  date  of  the  exchange  of  ratifications 
of  this  treaty,  a  declaration  of  their  decision  to  preserve  such  alle- 
giance; in  default  of  which  declaration  they  shall  be  held  to  have  re- 
nounced it  and  to  have  adopted  the  nationality  of  the  territory  in  which 
they  may  reside. 

The  civil  rights  and  political  status  of  tlie  native  inhabitants  of  the 
territories  hereby  ceded  to  the  United  States  shall  be  determined  by 
the  Congress. 

Article  X. 
The  inhabitants  of  the  territories  over  which  Spain  relinquishes  or 
cedes  her  sovereignty  shall  be  secured  in  the  free  exercise  of  their 
religion.  , 


512  TREATY-MAKING  POWER  OF  THE  U.  S. 

AUTICLE    XI. 

The  Spaniards  residia2;  in  the  territories  over  which  Spain  by  this 
treaty  ceiies  or  rclinquislies  her  sovereignty  sliall  be  subject  in  matters 
civil  as  well  as  criminal  to  the  jurisdiction  of  the  courts  of  the  country 
wherein  tliey  reside,  pursuant  to  the  ordinary  laws  governing  the  same; 
and  they  shall  have  the  right  to  appear  before  such  couits,  and  to  pur- 
sue the  same  course  as  citizens  of  the  country  to  which  the  courts  be- 
long. 

Article  XII. 
Judicial  proceedings  pending  at  the  time  of  the  exchange  of  ratifica- 
tions of  this  treaty  in  the  territories  over  which  Spain  relinquishes  or 
cedes  her  sovereignty  shall  be  determined  according  to  the  following 
rules: 

1.  Judgments  rendered  either  in  civil  suits  between  private  individ- 
uals, or  in  criminal  matters,  before  the  date  mentioned,  and  with  respect 
to  which  there  is  no  recourse  or  right  of  review  under  the  Spanish  law, 
shall  be  deemed  to  be  final,  and  shall  be  executed  in  due  form  by  com- 
petent authority  in  the  territory  within  which  such  judgments  should 
be  carried  out. 

2.  Civil  suits  between  private  individuals  which  may  (m  the  date 
mentioned  be  undetermined  shall  be  prosecuted  to  judgment  before 
the  court  in  which  they  may  then  be  pending  or  in  the  court  that  may 
be  substituted  therefore. 

3.  Criminal  actions  pending  on  the  date  mentioned  before  the  Su- 
preme Court  of  Spain  against  citizens  of  the  territory  which  by  this 
treaty  ceases  to  be  Spanish  shall  continue  under  its  jurisdiction  until 
final  judgment;  but,  such  judgment  having  been  rendered,  the  execu- 
tion thereof  shall  be  committed  to  the  competent  authority  of  the  place 
in  which  the  case  arose. 

Article  XIII. 
The  rights  of  property  secured  by  copyrights  and  patents  acquired 
by  Spaniards  in  the  Island  of  Cuba  and  in  Porto  Rico,  the  Philippines 
and  other  ceded  territories,  at  the  time  of  the  exchange  of  the  ratifica- 
tions of  this  treaty,  shall  continue  to  be  I'cspected.  Spanish  scientific, 
literary  and  artistic  works,  not  subversive  of  public  order  in  the  terri- 
tories in  question,  shall  continue  to  be  admitted  free  of  duty  into  such 
territories,  for  the  period  of  ten  years,  to  be  reckoned  from  the  date  of 
the  exchange  of  the  i-atifications  of  this  treaty. 

Article  XIV. 
Spain  shall  have  the  power  to  establish  consular  officers  in  the  ports 
and  places  of  the  territories,  the  sovereignty  over  which  has  been  either 
relinquished  or  ceded  by  the  present  treaty. 

Artfcle  XV. 
The  Government  of  each  country  will,  for  the  term  of  ten  years, 
aceord  to  the  merchant  vessels  of  the  other  country  the  same  treatment 


INSULAR  CASES  APPENDIX.  613 

in  respect  of  all  port  charges,  including  entrance  and  clearance  dues, 
light  dues,  and  tonnage  duties,  as  it  accords  to  its  own  merchant  ves- 
sels, not  engaged  in  the  coastwise  trade. 

This  article  may  at  any  time  be  terminated  on  six  months'  notice 
given  by  either  Government  to  the  other. 

Akticle  XVI. 
It  is  understood  that  any  obligations  assumed  in  this  treaty  by  the 
United  States  with  respect  to  Cuba  are  limited  to  the  time  of  its  occu- 
pancy thereof;  but  it  will  upon  the  termination  of  such  occupancy, 
advise  any  Government  established  in  the  islands  to  assume  the  same 
obligations. 

Article  XVII. 

The  present  treaty  shall  be  ratified  by  the  President  of  the  United 
States,  by  and  with  tlie  advice  and  consent  of  the  Senate  thereof,  and 
by  Her  Majesty  the  Queen  Regent  of  Spain;  and  the  ratifications  shall 
be  exclianged  at  Washington  within  six  months  from  the  date  hereof, 
or  earlier  if  possible. 

In  faith  whereof,  we,  the  respective  Plenipotentiaries,  have  signed 
this  treaty  and  have  hereunto  affixed  our  seals. 

Done  in  duplicate  at  Paris,  the  tenth  day  of  December,  in  the  year 
of  Our  Lord  one  thousand  eight  hundred  and  ninety-eight. 
[seal]     William  K.  Day,  [seal]     Eugenio  Monteko  Rios, 

[seal]     Cushman  K.  Davis,        [seal]     B.  de  Abakzuza, 
[seal]     William  P.  Fkye,  [seal]     J.  de  Garxica, 

[seal]     Geo.  Gray,  [seal]     W.  R.  de  Villa  Urrutia, 

[seal]     Whitelaw  Reid,  [seal]     Rafael  Cerero. 

See  Foreign  Relations  Report  of  United  States,  1898,  for  correspon- 
dence relating  to  the  foregoing  Protocol  (pp.  819,  et  seq.),  and  to  the 
Treaty  (pp.  904,  et  seq.) 

joint  resolution  to  provide  for  annexing  the  HAWAIIAN  ISLANDS 

TO  THE  UNITED  STATES  (30  U.  S.  Statutes  at  Large,  750). 

Whereas,  tlie  government  of  the  Republic  of  Hawaii  having,  in  due 
form,  signified  its  consent,  in  tlie  manner  provided  by  its  constitution, 
to  cede  absolutely  and  without  reserve  to  the  United  States  of  America 
all  rights  of  sovereignty  of  whatsover  kind  in  and  over  the  Hawaiian 
Islands  and  their  dependencies,  and  also  to  cede  and  transfer  to  the 
United  States  the  absnlute  fee  and  ownership  of  all  public,  government, 
or  crown  lands,  public  buildings  or  edifices,  ports,  harbors,  military 
equipment,  and  all  other  public  property  of  every  kind  and  description 
belonging  to  the  government  of  the  Hawaiian  Islands,  together  with 
every  right  and  appurtenance  thereunto  appertaining:  Therefore, 

Resolved  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  Americn  in  Com/ress  assembled,  That  said  cession  is  accepted 
ratified  and  confirmed,  and  that  the  said  Hawaiian  Islands  and  their  de- 
pendencies be,  and  they  are  hereby,  annexed  as  a  part  of  the  territory 

83 


514  TREATY-MAKING  POWER  OF  THE  U.  S. 

of  the  United  States  ami  are  subject  to  the  sovereign  dominion  thereof^ 
and  that  all  and  singular  the  property  and  rights  hereinbefore  men- 
tioned are  vested  iu  the  United  States  of  America. 

The  existing  laws  of  the  United  States  relative  to  public  lands  shall 
not  apply  to  such  lands  in  the  Hawaiian  Islands;  but  the  Congress  of 
the  United  States  shall  enact  special  laws  for  their  management  and 
disposition:  Provided,  That  all  revenue  from  or  proceeds  of  the  same, 
except  as  regards  such  part  thereof  as  may  be  used  or  occupied  for  the 
civil,  military  or  naval  purposes  of  the  United  States,  or  may  be  assigned 
for  the  use  of  the  local  government,  shall  be  used,  solely  for  the  benefit 
of  the  inhabitants  of  the  Hawaiian  Islands  for  educational  and  other 
public  purposes. 

Until  Congress  shall  provide  for  the  government  of  such  islands  all  the 
civil,  judicial  and  military  powers  exercised  by  the  officers  of  the  exist- 
ing government  in  said  islands  shall  be  vested  in  such  person  or  persons 
and  shall  be  exercised  in  such  manner  as  the  President  of  the  United 
States  shall  direct;  and  the  President  shall  have  power  to  remove  said 
officers  and  fill  the  vacancies  so  occasioned. 

The  existing  treaties  of  the  Hawaiian  Islands  with  foreign  nations 
shall  forthwith  cease  and  determine,  being  replaced  by  such  treaties  as 
may  exist,  or  as  may  be  hereafter  concluded,  between  the  United  States 
and  such  foreign  nations.  The  municipal  legislation  of  the  Hawaiian 
Islands,  not  enacted  for  the  fulfillment  of  the  treaties  so  extinguished, 
and  not  inconsistent  with  this  joint  resolution  nor  contrary  to  the  Con- 
stitution of  the  United  States  nor  to  any  existing  treaty  of  the  United 
States,  shall  remain  in  force  until  the  Congress  of  the  United  States 
shall  otherwise  determine. 

Until  legislation  shall  be  enacted  extending  the  United  States  customs 
laws  and  regulations  to  the  Hawaiian  Islands  the  existing  customs  rela- 
tions of  the  Hawaiian  Islands  with  the  United  States  and  other  coun- 
tries shall  remain  unchanged. 

The  public  debt  of  the  Republic  of  Hawaii,  lawfully  existing  at  the 
date  of  the  passage  of  this  joint  resolution,  including  the  amounts  due 
to  depositors  in  the  Hawaiian  Postal  Savings  Bank,  is  hereby  assumed 
by  the  Government  of  the  United  States;  but  the  liability  of  the  United 
States  in  this  regard  shall  in  no  case  exceed  four  million  dollars.  So 
long,  however,  as  the  existing  Government  and  the  present  commercial 
relations  of  the  Hawaiian  Islands  are  continued  as  hereinbefore  pro- 
vided, said  Government  shall  continue  to  pay  the  interest  on  said  debt. 

There  shall  be  no  further  immigration  of  Chinese  into  the  Hawaiian 
Islands,  except  upon  such  conditions  as  are  now  or  may  hereafter  be 
allowed  by  the  laws  of  the  United  States;  and  no  Chinese,  by  reason  of 
anything  herein  contained,  shall  be  allowed  to  enter  the  United  States 
from  the  Hawaiian  Islands. 

The  President  shall  appoint  five  commissioners,  at  least  two  of  whom 
shall  be  residents  of  the  Hawaiian  Islands,  who  shall,  as  soon  as  reason- 
ably practicable,  recommend  to  Congress  such  legislation  concerning 
the  Hawaiian  Islands  as  they  shall  deem  necessary  or  proper. 

Sec.  2.  That  the  commissioners  hereinbefore  provided  for  shall  be 


INSULAR  CASES  APPENDIX.  515 

appointed  by  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate. 

Sec.  3.  That  the  sum  of  one  hundred  tliousand  dollai-s,  or  so  much 
tliereof  as  may  be  necessary,  is  hereby  appropriated,  out  of  any  money 
in  the  Treasury  not  otlierwise  appropriated,  and  to  be  immediately 
available,  to  be  expended  at  the  discretion  of  the  President  of  the 
United  States  of  America,  for  the  purpose  of  carrying  this  joint  resolu- 
tion into  effect. 

Approved,  July  7,  1898. 

TABIFF   PROVISIONS  OP  THE  FORAKER  ACT. 

Act  of  April  12,  1900,  chapter  191  of  the  56th  Congress,   1st  session. 
31  U.  S.  Stat,  at  Large,  pp  77-86. 

An  Act  Teiiipor.irily  to  provide  reveuiies  and  a  civil  government  for 
Porto  Rico,  and  for  other  purposes. 

Be  it  enacted  etc.,  That  the  provisions  of  this  Act  shall  apply  to  the 
Island  of  Porto  Rico  and  to  the  adjacent  islands  and  waters  of  the  islands 
lying  east  of  the  seventy-fourth  meridian  of  longitude  west  of  Green- 
wich, which  were  ceded  to  the  United  States  by  the  Government  of 
Spain  by  treaty  entered  into  on  the  tenth  day  of  December,  eighteen 
hundred  and  ninety-eight;  and  the  name  Porto  Kico,  as  used  in  this 
Act,  shall  be  held  to  include  not  only  the  island  of  that  name,  but  all  the 
adjacent  islands  as  aforesaid.  (This  act  consists  of  forty-one  sections. 
The  tariff  provisions  only  were  involved  in  the  Insular  cases;  they  are 
here  quoted  at  length  as  in  the  opinion  of  Chief  Justice  Fuller  in 
Downes  vs.  Bidwell,  182  U.  S.  pp.  349  et  seq. 

Sec.  2.  That  on  and  after  the  passage  of  this  Act  the  same  tariffs,  cus- 
toms, and  duties  shall  be  levied,  collected,  and  paid  upon  all  articles 
imported  into  Porto  Rico  from  ports  other  than  those  of  the  United 
States  wliicli  are  required  by  law  to  be  collected  upon  articles  imported 
into  tlie  United  States  from  foreign  countries:  Provided,  That  on  all 
cotfee  in  the  bean  or  ground  imported  into  Porto  Rico  there  shall  be 
levied  and  collected  a  duty  of  five  cents  per  pound,  any  law  or  part  of 
law  to  the  contrary  notwithstanding:  And  provided  further.  That  all 
Spanish  scientific,  literary,  and  artistic  works,  not  subversive  of  public 
order  in  Porto  Rico,  shall  be  admitted  free  of  duty  into  Porto  Rico  for 
a  period  of  ten  years,  reckoning  from  the  eleventh  day  of  April,  eigh- 
teen hundred  and  ninety-nine,  as  provided  in  said  treaty  of  peace  be- 
tween the  United  Statesand  Spain :  And  provided  further,  That  all  books 
and  pamphlets  printed  in  the  English  language  shall  be  admitted  into 
Porto  Rico  free  of  duty  when  imported  from  the  United  States. 

Sec.  3.  That  on  and  after  the  passage  of  this  act  all  merchandise 
coming  into  the  United  States  from  Porto  Rico  and  coming  into  Porto 
Rico  from  the  United  States  shall  be  entered  at  the  several  ports  of  en- 
try upon  payment  of  fifteen  per  centum  of  the  duties  which  are  required 
to  be  levied,  collected,  and  paid  upon  like  articles  of  merchandise  im- 
ported from  foreign  countries;  and  in  addition  thereto  upon  articles  of 
merchandise  of  Porto  Rican  manufacture  coming  into  the  United  States 


51(3  TREATY-MAKING  POWER  OF  THE  U.  S. 

aud  wiilidiawu  for  cousumption  or  sale  upon  payment  of  a  tax  equal  to 
tlie  iuternal-reveiiue  tax  imposed  in  the  United  States  upon  the  like  ar- 
ticles of  merchandise  of  domestic  manufacture;  sucli  tax  to  be  paid  by 
internal-revenue  stamp  or  stamps  to  be  purchased  and  provided  by  the 
Commissioner  of  Internal  Keveuue  and  to  be  procured  from  the  col- 
lector of  internal  revenue  at  or  must  convenient  to  the  port  of  entry  of 
said  merchandise  in  the  United  States,  and  to  be  affixed  under  such  reg- 
ulations as  the  Commissioner  of  Internal  Revenue,  with  the  approval 
of  the  Secretary  of  the  Treasury  shall  prescribe;  and  on  all  articles  of 
merchandise  of  United  States  manufacture  coming  into  Porto  Rico  in 
addition  to  the  duty  above  provided  upon  payment  of  a  tax  equal  in  rate 
and  amount  to  the  internal-revenue  tax  imposed  in  Porto  Rico  upon  the 
like  articles  of  Porto  Rican  manufacture:  Provided,  That  on  and  after 
the  date  when  this  Act  shall  take  effect,  all  merchandise  and  articles, 
except  coffee,  not  dutiable  under  the  tariff  laws  of  the  United  States, 
aud  all  merchandise  aud  articles  entered  in  Porto  Rico  free  of  duty  un- 
der orders  heretofore  made  by  the  Secretary  of  War,  shall  be  admitted 
into  tlie  several  ports  thereof,  when  imported  from  the  United  States, 
free  of  duty,  all  laws  or  parts  of  laws  to  the  contrary  notwithstanding; 
and  whenever  the  legislative  assembly  of  Porto  Rico  shall  have  enacted 
and  pnt  into  operation  a  system  of  hical  taxation  to  meet  the  necessi- 
ties of  the  government  of  Porto  Rico,  by  this  act  established,  and  shall 
by  resolution  duly  passed  so  notify  the  President,  he  shall  make  proc- 
lamation thereof,  and  thereupon  all  tariif  duties  on  merchandise  and 
articles  going  into  Porto  Rico  from  the  United  States  or  coming  into  the 
United  States  from  Porto  Rico  shall  cease,  and  from  and  after  such  date 
all  such  merchandise  and  articles  shall  be  entered  at  the  several  ports 
of  entry  free  of  duty;  and  in  no  event  shall  any  duties  be  collected  after 
the  first  day  of  March,  nineteen  hundred  and  two,  on  merchandise  and 
articles  going  into  Porto  Rico  from  the  United  States  or  coming  into  the 
United  States  from  Porto  Rico. 

Sec.  4.  That  the  duties  and  taxes  collected  in  Porto  Rico  in  pursu- 
ance of  this  Act,  less  the  cost  of  collecting  the  same,  and  the  gross 
amount  of  all  collections  of  duties  and  taxes  in  the  United  States  upon 
articles  of  merchandise  coming  from  Porto  Rico,  shall  not  be  covered 
into  the  general  fund  of  the  Treasury,  but  shall  be  held  as  a  separate 
fund,  and  shall  be  placed  at  the  disposal  of  the  President  to  be  used  for 
the  government  and  benefit  of  Porto  Rico  until  the  government  of  Porto 
Rico  herein  provided  for  shall  have  been  organized,  when  all  moneys 
theretofore  collected  under  the  provisions  hereof,  then  unexpended, 
shall  be  transferred  to  the  local  treasury  of  Porto  Rico,  and  the  Secre- 
tary of  the  Treasury  shall  designate  the  several  ports  and  sub-ports  of 
entry  into  Porto  Rico  and  shall  make  such  rules  and  regulaticms  and 
appoint  such  agents  as  may  be  necessary  to  collect  the  duties  and  taxes 
authoiized  to  be  levied,  collected,  and  paid  in  Porto  Rico  by  the  pro- 
visions of  this  Act,  and  he  shall  fix  the  compensation  and  provide  for 
the  payment  thereof  of  all  such  officers,  agents,  and  assistants  as  he 
may  find  it  necessary  to  employ  to  carry  out  the  provisions  hereof; 
Provided,  however,  That  as  soon  as  a  civil  government  for  Porto  Rico 


iNStlLAE  CASES  APPENDIX.  517 

shall  have  been  organized  in  accordance  with  the  provisions  of  this  Act 
and  notice  thereof  shall  have  been  given  to  the  President  he  siiall  make 
proclamation  thereof,  and  thereafter  all  collections  of  duties  and  taxes 
in  Porto  Rico  under  the  provisions  of  this  Act  shall  be  paid  into  the 
treasury  of  Porto  Rico,  to  be  expended  as  required  by  law  for  the  gov- 
ernment and  benefit  thereof  instead  of  being  paid  into  the  Treasury  of 
the  United  States. 

Sec.  5.  That  on  and  after  the  day  when  this  act  shall  go  into  effect 
all  goods,  wares,  and  merchandise  previously  imported  from  Porto  Rico, 
for  which  no  entry  h:is  been  made,  and  all  goods,  wares,  and  merchan- 
dise previously  entered  without  payment  of  duty  and  under  bond  for 
warehousing,  transportation,  or  any  other  purpose,  for  which  no  permit 
of  delivery  to  the  importer  or  his  agent  has  been  issued,  shall  be  sub- 
jected to  the  duties  imposed  by  this  Act,  and  to  no  other  duty,  upon  the 
entry  or  the  withdrawal  thereof:  Provided,  That  when  duties  are  based 
upon  the  weight  of  merchandise  deposited  in  any  public  or  private 
bonded  warehouse  said  duties  shall  be  levied  and  collected  upon  the 
weight  of  such  merchandise  at  the  time  of  its  entry. 

Sec.  38.  That  no  export  duties  shall  be  levied  or  collected  on  exports 
from  Porto  Rico;  but  taxes  and  assessments  on  property,  and  license 
fees  for  franchises,  privileges,  and  concessions  may  be  imposed  for  tlie 
purposes  of  the  insular  and  municipal  governments,  respectively,  as 
may  be  provided  and  defined  by  act  of  the  legislative  assembly;  and 
where  necessary  to  anticipate  taxes  and  revenues,  bonds  and  other  obli- 
gations may  be  issued  by  Porto  Rico  or  any  municipal  government 
therein  as  may  be  provided  by  law  to  provide  for  expenditures  autiior- 
ized  by  law,  and  to  protect  the  public  credit,  and  to  reimbuise  the 
United  States  for  any  moneys  which  have  been  or  may  be  expended  out 
of  the  emergency  fund  of  the  AVar  Department  for  the  relief  of  the  indus- 
trial conditions  of  Porto  Rico  caused  by  the  hurricane  of  August  eighth, 
eighteen  hundred  and  ninety-nine:  Provided^  however,  That  no  i)ublic 
indebtedness  of  Porto  Rico  or  of  any  municipality  thereof  shall  be  au- 
thorized or  allowed  in  excess  of  seven  per  centum  of  the  aggregate  tax 
valuation  of  its  property. 

Executive  Orders  of  the  President  as  to  Tariff  in  Porto  Rioo. 

I, 

Executive  Mansion, 

August  19,  1898. 

By  virtue  of  the  authority  invested  in  me  as  Commander  in  Chief 
of  the  Army  and  Navy  of  the  United  States  of  America,  I  do  hereby 
order  and  direct  that  upon  the  occupation  and  possession  of  any  ports 
and  any  places  in  the  island  of  Porto  Rico  by  the  forces  of  the  United 
States  the  following  tariff  of  duties  and  taxes  to  be  levied  and  collected 
as  a  military  contribution,  and  regulations  for  the  administration  thereof 
shall  take  effect  and  be  in  force  in  the  ports  and  places  so  occupied. 

Questions  arising  under  said  tariff  and  regulations  shall  be  decided 
by  the  general  in  command  of  the  United  States  forces  in  that  island. 
Necessary  and  authorized  expenses  for  the  administration  of  said  tariff 
and  regulations  shall  be  paid  from  the  collections  thereunder. 


518  TREATY-MAKING  POWER  OF  THE  U.  S. 

Accurate  accounts  of  collections  and  expenditures  shall  be  kept  and 
rendered  to  the  Secretary  of  ^Va^. 

William  McKinley. 

II. 

Executive  Mansion, 

September  9th,  1898. 

Article  XIV  of  customs  tariff  and  regulations  for  ports  in  Porto 
Rico  in  possession  of  the  United  States  is  hereby  amended  so  as  to  read 
as  follows: 

Any  goods,  wares,  and  merchandise  not  duty  entered  for  payment 
of  duty  within  ninety  days  after  importation  shall  be  sold  at  auction,  by 
order  of  the  officer  iu  command  of  the  United  States  forces,  after  five 
days'  public  notice  conspicuously  posted  at  the  port,  provided  that  the 
period  of  ninety  days  may  be  extended  by  said  officer  not  exceeding  a 
period  of  six  months  from  the  date  of  importation,  when  good  and 
sufficient  reasons  therefor  are  presented  to  him,  if,  in  liis  judgment,  the 
interests  of  the  Government  will  permit  such  extension.  The  proceeds 
of  such  sale  will  be  kept  for  ten  days  subject  to  the  demand  of  the  im- 
porter, after  the  deduction  of  the  proper  duties  on  the  goods  and  all 
expenses  of  storage  and  sale. 

William  McKinley. 

ni. 

Executive  Mansion,  January  20,  1899. 

By  virtue  of  the  authority  vested  in  me  as  Commander  in  Chief  of 
the  Army  and  Navy  of  the  United  States  of  America,  I  do  hereby  order 
and  direct  that  the  following  tariff  of  duties  and  taxes  shall  be  levied 
and  collected,  and  the  regulations  for  the  administration  thereof  shall 
take  effect  and  be  in  force  in  all  ports  and  places  in  the  island  of  Porto 
Kico  and  all  islands  in  the  West  Indies  east  of  the  74th  degree,  west 
longitude,  evacuated  by  Spain  on  and  after  February  1,  1899. 

All  questions  arising  in  the  administration  of  customs  shall  be  re- 
ferred to  the  collector  at  the  port  of  San  Juan  for  decision,  and  there 
shall  be  no  appeal  from  such  decisions  except  in  cases  vphere  the  col- 
lector may  find  it  expedient  to  ask  for  special  instructions  of  the  War 
Department  on  the  points  involved. 

Necessary  and  authorized  expenses  for  the  administration  of  said 
tariff  and  regulations  shall  be  paid  from  the  collections  thereunder. 

Accurate  account  of  collections  and  expenditures  shall  be  kept  and 
rendered  to  the  Secretary  of  War. 

William  McKinley. 


CONSTITUTION  OF  THE  UNITED  STATES. 


We  the  People  of  the  United  States,  in  Order  to  form  a  more  perfect 
Union,  establish  Justice,  insure  domestic  Tranquility,  provide  for  the 
common  defence,  promote  the  general  Welfare,  and  secure  the  Bless- 
ings of  Liberty  to  ourselves  and  our  Posterity,  do  ordain  and  estab- 
lish this  CoNSTixrTiON  for  the  United  States  of  America. 

ARTICLE  I. 

Section  1.  All  legislative  Powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Senate  and 
House  of  Representatives. 

Section  2.  i  The  House  of  Representatives  shall  be  composed  of  Mem- 
bers chosen  every  second  Year  by  the  People  of  the  several  States,  and 
the  Electors  in  each  State  shall  have  the  Qualifications  requisite  for 
Electors  of  the  most  numerous  Branch  of  the  State  Legislature. 


In  May,  1785,  a  committee  of  Congress  made  a  report  recommending  an  alter- 
ation in  the  Articles  of  Coufederation,  but  no  action  was  taken  on  it,  and  it  was 
left  to  the  State  Legislatures  to  proceed  in  the  matter.  In  Jaimary,  178G,  the  Leg- 
islature of  Virginia  passed  a  resolution  providing  for  the  appointment  of  five 
commissioners,  who,  or  any  three  of  them,  should  meet  such  commissioners  as 
might  be  appointed  in  the  other  States  of  the  Union,  at  a  time  and  place  to  be 
agreed  upon,  to  take  into  consideration  the  trade  of  the  United  States ;  to  con- 
sider how  far  a  uniform  system  in  their  commercial  regulations  may  be  neces- 
sary to  their  common  interest  and  their  permanent  harmony ;  and  to  report  to 
the  several  States  such  an  act,  relative  to  this  great  object,  as,  when  ratified  by 
them,  will  enable  the  United  States  in  Congress  effectually  to  provide  for  tlie 
same.  The  Virginia  commissioners,  after  some  correspondence,  fixed  the  first 
Monday  in  September  as  the  time,  and  the  city  of  Annapolis  as  the  place  for  the 
meeting,  but  only  four  other  States  were  represented,  viz :  Delaware,  New  York, 
New  Jersey,  and  Pennsylvania ;  the  commissioners  appointed  by  Massachusetts, 
New  Hampshire,  North  Carolina,  and  Rhode  Island  failed  to  attend.  Under 
the  circumstances  of  so  partial  a  representation,  the  commissioners  present 
agreed  upon  a  report,  (drawn  by  Mr.  Hamilton,  of  New  York,)  expressing  their 
unanimous  conviction  that  it  might  essentially  tend  to  advance  tlie  interests  of 
the  Union  if  the  States  by  which  they  were  respectively  delegated  would  cori- 
cur,  and  use  their  endeavors  to  iirocure  the  concurrence  of  the  other  States,  in 
the  appointment  of  commissioners  to  meet  at  Philadelphia  on  the  second  Mon- 
day of  May  following,  to  take  into  consideration  the  situation  of  the  United 
States;  to  devise  such  further  provisions  as  should  appear  to  them  necessary  to 
render  the  Constitution  of  the  Federal  Govcnnnent  adequate  to  the  exigencies 
of  the  Union;  and  to  report  such  an  art  for  that  purpose  to  the  UnitcMl  States  in 

519 


o20  TKEATY-.MAKlN(r  POWER  OF  THE  U.  S. 

-No  Person  shall  be  a  Representative  who  shall  not  have  attained  to 
the  Age  of  twenty-live  Years,  and  been  seven  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhabitant  of 
that  State  in  which  he  shall  be  chosen. 

3*  [Representatives  and  direct  Taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union,  according  to 
their  respective  Numbers,  which  shall  be  determined  by  adding  to  the 
whole  Number  of  free  Persons,  including  those  bound  to  Service  for  a 
Term  of  Years,  and  excluding  Indians  not  taxed,  three  fifths  of  all 
other  Persons.]  The  actual  Enumeration  shall  be  made  within  three 
Years  after  the  first  Meeting  of  the  Congress  of  the  United  States,  and 
within  every  subsequent  Term  of  ten  Years,  in  such  Manner  as  they 
shall  by  Law  direct.  The  Number  of  Representatives  shall  not  exceed 
one  for  every  thirty  Thousand,  but  each  State  shall  have  at  Least  one 
Representative;  and  until  such  enumeration  shall  be  made,  the  State  of 
New  Hampshire  shall  be  entitled  to  cbuse  three,  Massachusetts  eight, 
Rhode-Island  and  Providence  Plantations  one,  Connecticut  five,  New- 


Congress  assembled  as,  when  agreed  to  by  them  and  afterwards  confirmed  by 
the  Legislatures  of  every  State,  would  effectually  provide  for  the  same. 

Congress,  on  the  21st  of  February,  1787,  adopted  a  resolution  in  favor  of  a  con- 
vention, and  the  Legislatures  of  tliose  States  which  had  not  already  done  so 
(with  the  exception  of  Rhode  Island)  promptly  appointed  delegates.  On  the 
25th  of  May,  seven  States  having  convened,  George  Washington,  of  Virginia, 
was  unanimously  elected  President,  and  the  consideration  of  the  proposed  con- 
stitution was  commenced.  On  the  17th  of  September,  1787,  the  Constitution  as 
engrossed  and  agreed  upon  was  signed  by  all  the  members  present,  except  Mr. 
Gerry,  of  Massachusetts,  and  Messrs.  Mason  and  Randolph,  of  Virginia.  The 
president  of  the  convention  transmitted  it  to  Congress,  with  a  resolution  stating 
how  the  proposed  Federal  Government  should  be  put  in  operation,  and  an  ex- 
planatoiy  letter.  Congress,  on  the  28th  of  September,  1787,  directed  the  Con- 
stitution so  framed,  with  the  resolutions  and  letter  concerning  the  same,  to  "  be 
transmitted  to  the  several  Legislatures  in  order  to  he  submitted  to  a  convention 
of  delegates  chosen  in  each  State  by  the  people  thereof,  in  conformity  to  the  re- 
solves of  the  convention." 

On  the  4th  of  March,  1789,  the  day  which  had  been  fixed  for  commencing  the 
operations  of  Government  under  the  new  Constitution,  it  had  been  ratified  by 
the  conventions  chosen  in  each  State  to  consider  it,  as  follows:  Delaware,  De- 
cember 7,  1787 ;  Pennsylvania,  December  12,  1787 ;  New  Jersey,  December  18, 
1787 ;  Georgia,  January  2,  1788 ;  Connecticut,  January  9,  1788 ;  Massachusetts, 
Februaiy  6,  1788 ;  Mary-land,  April  28,  1788 ;  South  Carolina,  May  23, 1788 ;  New 
Hampshire,  June  21,  1788;  Virginia,  June  26,  1788;  and  New  York,  July  26, 
1788. 

The  President  informed  Congi-ess,  on  the  28th  of  January,  1790,  that  North 
Carolina  had  ratified  the  Constitution  November  21,  1780;  and  he  informed 
Congress  on  the  1st  of  June,  1790,  that  Rhode  Island  had  ratified  the  Constitu- 
tion May  29,  1789.  Vermont,  in  convention,  ratified  the  Constitution  Janu- 
ary 10,  1791,  and  was,  by  an  act  of  Congress  approved  February  18,  1791, 
"received  and  admitted  into  this  Union  as  a  new  and  entire  member  of  the 
United  States." 

*  The  clause  included  in  brackets  is  amended  by  the  14th  amendment,  2d  sec- 
tion.    (See  p.  532,  post.) 


CONSTITUTION    OF  THE  UNITED   STATES.  521 

York  six,  New  Jersey  four,  Pennsylvania  eight,  Delaware  one,  Mary- 
land six,  Virginia  ten,  North  Carolina  five.  South  Carolina  five,  and 
Georgia  three. 

*  When  vacancies  happen  in  the  Representation  from  any  State,  the 
Executive  Authority  thereof  shall  issue  Writs  of  Election  to  fill  such 
Vacancies. 

^Tlie  House  of  Representatives  shall  chuse  their  Speaker  and  other 
Officers;  and  shall  have  the  sole  Power  of  Impeachment. 

Skction  3.  1  The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  chosen  by  the  Legislature  thereof,  for 
six  Years;  and  each  Senator  sliall  have  one  Vote. 

2  Immediately  after  they  sliall  be  assembled  in  Consequence  of  the 
first  Election,  they  shall  be  divided  as  equally  as  m;iy  be  into  three 
Classes.  Tlie  Seats  of  the  Senators  of  the  first  Class  shall  be  vacated 
at  the  Expiration  of  the  second  Year,  of  the  second  Class  at  the  Expi- 
ration of  the  fourth  Year,  and  of  the  third  Class  at  tlie  Expiration  of 
the  sixth  Year,  so  that  one-third  may  be  chosen  every  second  Year; 
and  if  Vacancies  happen  by  Resignation,  or  otherwise,  during  the  Re- 
cess of  the  Legislature  of  any  State,  tlie  Executive  thereof  may  make 
temporary  Appointments  until  the  next  Meeting  of  the  Legislature, 
which  shall  then  fill  such  Vacancies. 

3  No  Person  shall  be  a  Senator  who  shall  not  have  attained  to  the  Age 
of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  Inhabitant  of  that  State  for  which 
he  sliall  be  chosen. 

*  The  Vice  President  of  the  United  States  shall  be  President  of  the 
Senate,  but  shall  have  no  Vote,  unless  they  be  equally  divided. 

^The  Senate  shall  chuse  tlieir  other  Officers,  and  also  a  Presidentpro 
tempore,  in  the  Absence  of  the  Vice  President,  or  when  he  shall  exer- 
cise the  Office  of  President  of  the  United  States. 

6  The  Senate  shall  have  the  sole  Powei-  to  try  all  Impeachments.  Wlien 
sitting  for  that  Purpose,  they  shall  be  on  Oath  or  Affirmation.  When 
the  President  of  the  United  States  is  tried,  the  Chief  Justice  shall  pre- 
side: And  no  Person  shall  be  convicted  without  the  Concurrence  of  two 
thirds  of  the  Members  present. 

■^  Judgment  in  Cases  of  Impeachment  shall  not  extend  furtlier  than 
to  removal  from  Office,  and  disqualification  to  hold  and  enjoy  any  Office 
of  honor.  Trust  or  Profit  under  the  United  States:  but  the  Party  con- 
victed shall  nevertheless  be  liable  and  subject  to  Indictment,  Trial, 
Judgment  and  Punishment,  according  to  Law. 

Section  4.  i  The  Times,  Phices  and  Manner  of  holding  Elections  for 
Senators  and  Representatives,  shall  be  prescribed  in  each  State  by  the 
Legislature  thereof;  but  tlie  Congress  may  at  any  time  by  Law  mnke  or 
alter  such  Regulations,  except  as  to  the  Places  of  cliusing  Senators. 

2  The  Congress  shall  assemble  at  least  once  in  every  Year,  and  such 
Meeting  shall  be  on  the  fiist  Monday  in  December,  unless  they  shall  by 
Law  appoint  a  different  Day. 

Section  '>.  '  Each  House  shall  be  the  Judge  of  the  Elections,  Returns 
and  Qualifications  of  its  own  Members,  and  a  Majority  of  each  shall 


5:22  TIIKATY-MAKINc;    I'OWKll  OF  THE  U.  S. 

constitute  a  quorum  to  do  business;  but  a  smaller  Number  may  adjourn 
from  day  to  day.  and  may  be  authorized  to  compel  the  Attendance  of 
absent  Members,  in  such  Manner,  and  under  such  Penalties  as  each 
House  may  provide. 

-Earh  House  may  determine  the  Rules  of  its  Proceedings,  punish  its 
Members  for  disorderly'  Behaviour,  and,  with  the  Concurrence  of  two 
thirds,  expel  a  Member. 

^Each  House  shall  keep  a  Journal  of  its  Proceedings,  and  from  time 
to  time  publish  the  same,  excepting  such  Parts  as  may  in  their  Judg- 
ment require  Secrecy;  and  the  Yeas  and  Nays  of  the  Members  of  either 
House  on  any  question  shall,  at  the  Desire  of  one  fifth  of  those  Present, 
be  entered  on  the  Journal. 

*  Neither  House,  during  the  Session  of  Congress,  shall,  without  the 
Consent  of  tlie  other,  adjourn  for  more  than  three  days,  nor  to  any 
other  Place  than  that  in  which  the  two  Houses  shall  be  sitting. 

Section  G.  ^  The  Senators  and  Representatives  shall  receive  a  Com- 
pensation for  their  Services,  to  be  ascertained  by  Law,  and  paid  out  of 
the  Treasury  of  the  United  States.  They  shall  in  all  Cases,  except  Trea- 
son, Felony  and  Bi-each  of  the  Peace,  be  privileged  from  Arrest  during 
their  Attendance  at  the  Session  of  their  respective  Houses,  and  in  going 
to  and  returning  from  the  same;  and  for  any  Speech  or  Debate  in  either 
House,  they  shall  not  be  questioned  in  any  other  Place. 

^No  Senator  or  Representative  shall,  during  the  Time  for  which  he 
was  elected,  be  ajipointed  to  any  civil  Office  under  the  Authority  of  the 
United  States,  which  shall  have  been  created,  or  the  Emoluments  where- 
of shall  have  been  encreased  during  such  time;  and  no  Person  holding 
any  Office  under  the  United  States,  shall  be  a  Member  of  either  House 
during  his  Continuance  in  Office. 

Section  7.  ^  All  Bills  for  raising  Revenue  shall  originate  in  the  House 
of  Representatives;  but  the  Senate  may  proi)ose  or  concur  with  Amend- 
ments as  on  other  Bills. 

2  Every  Bill  which  shall  have  passed  the  House  of  Representatives 
and  tlie  Senate,  shall,  before  it  become  a  Law,  be  presented  to  the 
President  of  the  United  States;  If  he  approve  he  shall  sign  it,  but  if 
not  he  shall  return  it,  with  his  Objections  to  that  House  in  which  it 
sliall  have  originated,  who  shall  enter  the  Objections  at  large  on  their 
Journal,  and  proceed  to  reconsider  it.  If  after  such  Reconsideration 
two  thirds  of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be  sent, 
together  with  the  Objections,  to  the  other  House,  by  which  it  shall 
likewise  be  reconsidered,  and  if  approved  by  two-thirds  of  that  House, 
it  shall  become  a  Law.  But  in  all  such  Cases  the  Votes  of  both  Houses 
shall  be  determined  by  Yeas  and  Nays,  and  the  Names  of  the  Persons 
voting  for  and  against  the  Bill  shall  be  entered  on  the  Journal  of  each 
House  respectively.  If  any  Bill  shall  not  be  returned  by  the  President 
within  ten  Days  (Sundays  excepted)  after  it  shall  have  been  presented 
to  him,  the  Same  shall  be  a  Law,  in  like  Manner  as  if  he  had  signed  it, 
unless  the  Congress  by  their  Adjournment  prevent  its  Return,  in  which 
Case  it  shall  not  be  a  Law. 

8 Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence  of  the 


CONSTITUTION   OF   THE    UNITED    STATES.  523 

Senate  and  House  of  Representatives  may  be  necessary  (except  on  a 
question  of  Adjouinmeut)  shall  be  presented  to  the  PresicCent  of  the 
United  States;  and  before  the  Same  shall  take  Effect,  shall  be  approved 
by  him,  or  being  disapproved  by  him,  shall  be  repassed  by  two  thirds 
of  the  Senate  and  House  of  Representatives,  according  to  the  Rules 
and  Limitations  prescribed  iu  the  Case  of  a  Bill. 

Section  8.  The  Congress  shall  have  Power  ^  To  lay  and  collect  Taxes, 
Duties,  Imposts  and  Excises,  to  pay  the  Debts  and  provide  for  the 
common  Defence  and  general  Welfare  of  the  United  States;  but  all 
Duties,  Imposts  and  Excises  shall  be  uniform  throughout  the  United 
States; 

2  To  borrow  Money  on  the  credit  of  the  United  States; 

8 To  regulate  Commerce  with  foreign  Nations,  and  among  the  several 
States,  and  witli  the  Indian  Tribes; 

*To  establish  an  uniform  Rule  of  Naturalization,  and  uniform  Laws 
on  the  subject  of  Bankruptcies  throughout  the  United  States; 

^To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign  Coin,  and 
fix  the  Standard  of  Weights  and  Measures; 

6 To  provide  for  the  Punishment  of  counterfeiting  the  Securities  and 
current  Coin  of  the  United  States; 

■^To  establish  Post  Offices  and  post  Roads; 

8  To  promote  the  Progress  of  Science  aud  useful  Arts,  by  securing 
for  limited  Times  to  Authors  and  Inventors  the  exclusive  Right  to  their 
respective  Writings  and  Discoveries; 

9 To  constitute  Tribunals  inferior  to  the  supreme  Court; 

^^To  define  and  punish  Piracies  and  Felonies  committed  on  the  high 
Seas,  and  Offences  against  the  Law  of  Nations; 

"To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and  make 
Rules  concerning  Captures  on  Land  and  Water; 

12  To  raise  and  support  Armies,  but  no  Appropriation  of  Money  to 
that  Use  shall  be  for  a  longer  Term  than  two  Years; 

13 To  provide  and  maintain  a  Navy; 

i*To  make  Rules  for  the  Government  and  Regulation  of  the  land  and 
naval  Forces; 

15  To  provide  for  calling  forth  the  Militia  to  execute  the  Laws  of  the 
Union,  suppress  Insurrections  and  repel  Invasions; 

i°To  provide  for  organizing,  arming,  and  disciplining,  the  Militia, 
and  for  governing  such  Part  of  them  as  may  be  employed  in  the  Ser- 
vice of  the  United  States,  reserving  to  the  States  respectively,  the  Ap- 
pointment of  the  Officers,  and  the  Authority  of  training  the  Militia  ac- 
cording to  the  discipline  prescribed  by  Congress; 

I'To  exercise  exclusive  Legislation  in  all  Cases  whatsoever,  over  such 
District  (not  exceeding  ten  Miles  square)  as  may,  by  Cession  of  partic- 
ular States,  and  the  Acceptance  of  Congress,  become  the  Seat  of  the 
Government  of  the  United  States,  and  to  exercise  like  Authority  over 
all  Places  purchased  by  the  Consent  of  the  Legislature  of  tiie  State  in 
which  the  Same  shall  be,  for  the  Erection  of  Forts,  Magazines,  Arsenals, 
dock- Yards,  and  other  needful   Buildings; — And 

18  To  make  all  Laws  which  shall  be  necessary  and  proper  for  carrying 


52-4  TREAT Y-MAKJ  NO  I'OWICR  OF  THE  U.  S. 

into  Execution  the  foregoing  Powers,  and  all  other  Powers  vested  by 
this  Cunstftiitiou  in  the  Government  of  the  United  States,  or  in  any  De- 
partment or  Officer  thereof. 

Section  9.  ^The  Migration  or  Importation  of  such  Persons  as  any 
of  the  States  now  existing  shall  think  proper  to  admit,  shall  not  be  pro- 
hibited by  the  Congress  prior  to  the  Year  one  thousand  eiglit  hundred 
and  eight,  but  a  Tax  or  duty  may  be  imposed  on  such  Importation,  not 
exceediug  ten  dollars  for  each  Person. 

-The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  suspended, 
unless  when  in  Cases  of  Kebellion  or  Invasion  the  public  Safety  may  re- 
quire it. 

3  No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

*  No  Capitation,  or  other  direct,  tax  shall  be  laid,  unless  in  Propor- 
tion to  the  Census  or  Enumeration  herein  before  directed  to  be  taken. 

5 No  Tax  or  Duty  shall  be  laid  on  Articles  exijorted  from  any  State. 

^No  Preference  shall  be  given  by  any  Regulation  of  Commerce  or 
Revenue  to  the  Ports  of  one  State  over  those  of  another:  nor  shall  Ves- 
sels bound  to,  or  from,  one  State,  be  obliged  to  enter,  clear,  or  pay 
Duties  in  another. 

■^  No  Money  shall  be  drawn  from  the  Treasury,  but  in  Consequence  of 
Appropriations  made  by  Law;  and  a  regular  Statement  and  Account  of 
the  Receipts  and  Expenditures  of  all  public  Money  shall  be  published 
from  time  to  time. 

*No  Title  of  Nobility  shall  be  granted  by  the  United  States:  And  no 
Person  holding  any  Office  of  Profit  or  Trust  under  them,  shall,  without 
the  Consent  of  the  Congress,  accept  of  any  present,  Emolument,  Office, 
or  Title,  of  any  kind  whatever,  from  any  King,  Prince,  or  foreign  State. 

Section  10.  ^  No  State  shall  enter  into  any  Treaty,  Alliance,  or 
Confederation;  grant  Letters  of  Marque  and  Reprisal;  coin  Money; 
emit  Bills  of  Credit:  make  any  Thing  but  gold  and  silver  Coin  a 
Tender  in  Payment  of  Debts;  pass  any  Bill  of  Attainder,  ex  post  facto 
Law,  or  Law  impairing  the  Obligation  of  Contracts,  or  grant  any  Title 
of  Nobility. 

2  No  State  shall,  without  the  Consent  of  the  Congress,  lay  any  Im- 
posts or  Duties  on  Imports  or  Exports,  except  what  may  be  absolutely 
necessary  for  executing  it's  inspection  Laws:  and  the  net  Pioduce  of 
all  Duties  and  Imposts,  laid  by  any  State  on  Imports  or  Exports,  shall 
be  for  the  Use  of  the  Treasury  of  the  United  States;  and  all  such  Laws 
shall  be  subject  to  the  Revision  and  Controul  of  the  Coiigress. 

*  No  State,  shall  without  the  Consent  of  Congress,  lay  any  Duty  of 
Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of  Peace,  enter  into  an 
Agreement  or  Compact  with  another  State,  or  with  a  foreign  Power,  or 
engage  in  War,  unless  actually  invaded,  or  in  such  imminent  Danger  as 
will  not  admit  of  delay. 

ARTICLE  IL 
Section  1.    ^  The  executive  Power  sliall  be  vested  in  a  President  of 
the  United  States  of  America.    He  shall  hold  his  Office  during  the  Term 


CONSTITUTION    OF   THE    UNITED    STATES.  525 

of  four  Years,  and,  together  with  the  Vice  President,  chosen  for  the 
same  Term,  be  elected,  as  follows: 

2  Each  State  shall  appoint,  in  such  Manner  as  the  Legislature  thereof 
may  direct,  a  Number  of  Electors,  equal  to  the  whole  Number  of  Sena- 
tors and  Representatives  to  which  the  State  may  be  entitled  in  the  Con- 
gress: but  no  Senator  or  Kepresentative,  or  Person  holding  an  Office  of 
Trust  or  Profit  under  the  United  States,  shall  be  appointed  an  Elector. 

3  The  Congress  may  determine  the  Time  of  chusiug  the  Electors,  and 
the  Day  on  which  they  shall  give  their  Votes;  which  day  shall  be  the 
same  throughout  the  United  States. 

*  No  person  except  a  natural  born  Citizen,  or  a  Citizen  of  the  United 
States,  at  the  time  of  the  Adoption  of  this  Constitution,  shall  be  eligi- 
ble to  the  Office  of  President;  neither  shall  any  Person  be  eligible  to 
that  Office  who  shall  not  have  attained  to  the  Age  of  thirty-five  Years, 
and  been  fourteen  Years  a  Resident  within  the  United  States. 

5  In  Case  of  the  Removal  of  the  President  from  Office,  or  of  his 
Death,  Resignation,  or  Inability  to  discharge  the  Powers  and  Duties 
of  the  said  Office,  the  same  shall  devolve  on  the  Vice  President,  and 
the  Congress  may  by  Law  provide  for  tlie  Case  of  Removal,  Death, 
Resignation  or  Inability,  both  of  the  President  and  Vice  President, 
declaring  what  Officer  sliall  then  act  as  President,  and  such  Officer 
shall  act  accordingly,  until  the  Disability  be  removed,  or  a  President 
shall  be  elected. 

«  The  President  shall,  at  stated  Times,  receive  for  his  Services,  a 
Compensation,  wliich  shall  neither  be  eucreased  nor  diminished  during 
the  Period  for  which  he  shall  have  been  elected,  and  he  shall  not  re- 
ceive within  that  Period  any  other  Emolument  from  the  United  States, 
or  any  of  them. 

■^  Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take  the 
following  Oath  or  Affirmation: — "I  do  solemnly  swear  (or  affirm)  that 
I  will  faithfully  execute  the  Office  of  President  of  the  United  States, 
and  will  to  the  best  of  my  Ability,  preserve,  protect  and  defend  the 
Constitution  of  the  United  States." 

Section  2.  ^  The  President  shall  be  Commander  in  Chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the  Militia  of  the  several 
States,  when  called  into  the  actual  Service  of  the  United  States;  he 
may  require  the  Opini(m,  in  writing,  of  tlie  principal  Officer  in  each  of 
the  executive  Departments,  upon  any  Subject  relating  to  the  Duties  of 
their  respective  Offices,  and  he  shall  have  power  to  grant  Reprieves  and 
Pardons  for  Offences  against  the  United  States,  except  in  Cases  of  Im- 
peachment. 

2  lie  shall  have  Power,  by  and  with  the  Advice  and  Consent  of  the 
Senate,  to  make  Treaties,  provided  two  thirds  of  the  Senators  present 
concur;  and  he  shall  nominate,  and  by  and  with  the  Advice  and  Con- 
sent of  the  Senate,  shall  appoint  Ambassadors,  other-  public  Ministers 
and  Consuls,  Judges  of  the  supreme  Court,  and  all  other  Officers  of  the 
United  States,  whose  Appointments  are  not  herein  otherwise  provided 
for,  and  which  shall  be  established  by  Law:  but  the  Congress  may  by 
Law  vest  the  Appointment  of  such  inferior  Officers,  as  they  think  proper, 


02G  TKEATY-MAKING  I'OWEK  OF  THE  U.  S. 

in  the  Presideut  aloue,  iu  the  Courts  of  Law.  or  in  the  Heads  of  Depart- 
ments. 

3  Tlie  President  shall  have  Power  to  fill  up  all  Vacancies  that  may 
happen  during  the  Kecess  of  the  Senate,  by  granting  Commissions  which 
shall  expire  at  the  End  of  their  next  Session. 

Section  3.  He  shall  from  time  to  time  give  to  the  Congress  Informa- 
tion of  the  State  of  the  Union,  and  recommend  to  their  Consideration 
such  Measures  as  he  shall  judge  necessary  and  expedient;  he  may,  on 
extraordinary  Occasions,  convene  both  Houses,  or  either  of  them,  and 
iu  Case  of  Disagreement  between  them,  with  Respect  to  the  Time  of 
Adjournment,  he  may  adjourn  them  to  such  Time  as  he  shall  think 
proper;  he  shall  receive  Ambassadors  and  other  public  Ministers;  he 
shall  take  Care  that  the  Laws  be  faithfully  executed,  and  shall  Commis- 
sion all  the  Officers  of  the  United  States. 

Section  4.  The  President,  Vice  President  and  all  civil  Officers  of  the 
United  States,  shall  be  removed  from  Office  on  Impeachment  for,  and 
Conviction  of,  Treason,  Bribery,  or  other  high  Crimes  and  Misdemeanors. 

ARTICLE  IlL 

Section  1.  The  judicial  Power  of  the  United  States,  shall  be  vested 
in  oue  supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The  Judges,  both  of  the  su- 
preme and  inferior  Courts,  shall  hold  their  Offices  during  good  Behav- 
iour, and  shall,  at  stated  Times,  receive  for  their  Services,  a  Compen- 
saticm,  which  shall  not  be  diminished  during  their  Continuance  in  Office. 

Section  2.  ^Tlie  judicial  Power  shall  extend  to  all  Cases,  in  Law  and 
Equity,  arising  under  this  Constitution,  the  Laws  of  the  United  States, 
and  Treaties  made,  or  which  shall  be  made,  under  their  Authority; — 
to  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Consuls; 
— to  all  Cases  of  admiralty  and  maritime  Jurisdiction; — to  Controver- 
sies to  which  the  United  States  shall  be  a  Party; — to  Controversies  be- 
tween two  or  more  States; — between  a  State  and  Citizens  of  another 
State; — between  Citizens  of  different  States, — between  Citizens  of  tlie 
same  State  claiming  Lands  under  Grants  of  different  States,  and  between 
a  State,  or  the  Citizens  thereof,  and  foreign  States,  Citizens  or  Subjects. 

2 In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Con- 
suls, and  those  in  which  aState  shall  be  Party,  the  supreme  Court  shall 
have  original  Jurisdiction.  In  all  the  other  Cases  before  mentioned, 
the  supreme  Court  shall  have  appellate  Jurisdiction,  both  as  to  Law 
and  Fact,  with  such  Exceptions,  and  under  such  Regulations  as  the 
Congress  shall  make. 

8 The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment,  shall  be 
by  Jury;  and  such  Trial  shall  be  held  in  the  State  where  the  said  Crimes 
shall  liave  been  committed;  but  when  not  committed  within  any  State, 
the  Trial  shall  be  at  such  Place  or  Places  as  the  Congress  may  by  Law 
have  directed. 

Section  3.  ^  Treason  against  the  United  States,  shall  consist  only  in 
levying  War  against  them,  or  in  adhering  to  their  Enemies,  giving  them 
Aid  and  Comfort.     No  Person  shall  be  convicted  of  Treason  unless  on 


CONSTITUTION    OF   THE    UNITED    STATES.  527 

the  Testimony  of  two  Witnesses  to  the  same  overt  Act,  or  on  Confes- 
sion in  open  Court. 

-The  Congress  shiill  have  Power  to  declare  the  Punishment  of  Trea- 
son, but  no  Attainder  of  Treason  shall  work  Corruption  uf  Blood,  or 
Forfeiture  except  during  the  Life  of  the  Person  attainted. 

ARTICLE  IV. 

Section  1.  Full  Faith  and  Credit  shall  be  given  in  each  State  to  the 
public  Acts,  Records,  and  judicial  Proceedings  of  every  other  State. 
And  the  Congress  may  by  general  Laws  prescribe  the  Manner  in  which 
such  Acts,  Records  and  Proceedings  shall  be  proved,  and  the  Effect 
thereof. 

Sectiox  2.  1  The  Citizens  of  each  State  shall  be  entitled  to  all  Privi- 
leges and  Immunities  of  Citizens  in  the  several  States. 

-A  person  charged  in  any  State  with  Treason,  Felony,  or  other  Crime, 
who  shall  flee  from  Justice,  and  be  found  in  another  State,  shall  ou  De- 
maud  of  the  executive  Authority  of  the  State  from  which  he  fled,  be 
delivered  up,  to  be  removed  to  the  State  having  Jurisdiction  of  the 
Crime. 

3 No  Person  held  to  Service  or  Labour  in  one  State,  under  the  Laws 
thereof,  escaping  into  another,  shall,  in  Consequence  of  any  Law  or 
Regulation  therein,  be  discharged  from  such  Service  or  Labour,  but 
shall  be  delivered  up  on  Claim  of  the  Party  to  whom  such  Service  or 
Labour  may  be  due. 

Sections,  i  New  States  maybe  admitted  by  the  Congress  into  this 
Union;  but  no  new  State  shall  be  formed  or  erected  within  the  Juris- 
diction of  any  other  State;  nor  any  State  be  formed  by  the  Junction  of 
two  or  more  States,  or  Parts  of  States,  without  the  Consent  of  the  Leg- 
islatures of  the  States  concerned  as  well  as  of  the  Congress. 

2  The  Congress  shall  have  Power  to  dispose  of  and  make  all  needful 
Rules  and  Regulations  respecting  the  Territory  or  other  Property  be- 
longing to  the  United  States;  ami  nothing  in  this  Constitution  shall  be 
so  construed  as  to  Prejudice  any  Claims  of  the  United  States,  or  of  any 
particular  State. 

Section  4.  The  United  States  shall  guarantee  to  every  State  in  his 
Union  a  Republican  Form  of  Government,  and  shall  protect  each  of 
them  against  Invasion;  and  on  Application  of  the  Legislature,  or  of 
the  Executive  (when  the  Legislature  cannot  be  convened)  against  do- 
mestic Violence. 

ARTICLE  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  it  nec- 
essary, shall  propose  Amendments  to  this  Constitution,  or,  on  the  Ap- 
plication of  the  Legislatures  of  two  tliirds  of  tlie  several  States,  shall 
call  a  Convention  for  proposing  Amendments,  which,  in  eitlier  Case, 
shall  be  valid  to  all  Intents  and  Purposes,  as  Part  of  tliis  Constitution, 
when  ratified  by  the  Legislatures  of  three  fourths  of  the  several  States, 
or  by  Conventions  in  three  fourths  thereof,  as  the  one  or  the  other 
Mode  of  Ratification  may  be  proposed  by  the  Congress;  Provided  that 


528 


TRKATY-MAKING  POWER  OF  THE  U.  S. 


no  Ameiulment  whicli  may  be  m;\de  piior  to  the  Year  One  thousand 
^iglit  humhed  and  eight  sliall  in  any  Manner  affect  the  first  and  fourth 
Chiuses  in  the  Ninth  Section  of  the  first  Article;  and  tliat  no  State, 
without  its  Consent,  shall  be  deprived  of  its  equal  Suffrage  in  the  Senate. 

ARTICLE  VI. 

lAll  Debts  contracted  and  Engagements  entered  into,  before  the 
Adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
States  under  this  Constitution,  as  under  the  Confederation. 

2  This  Constitution,  and  the  Laws  of  the  United  States  which  shall  be 
made  in  Pursuance  thereof;  and  all  Treaties  made,  or  which  shall  be 
made,  under  the  Authority  of  the  United  States,  shall  be  the  supreme 
Law  of  the  Land ;  and  the  J  udges  in  every  State  shall  be  bound  thereby, 
any  Thing  in  the  Constitution  or  Laws  of  any  State  to  the  Contrary  not- 
withstanding. 

8  The  Senators  and  Representatives  before  mentioned,  and  tbe  Mem- 
bers of  the  several  State  Legislatures,  and  all  executive  and  judicial  Of- 
ficers, both  of  the  United  States  and  of  the  several  States,  shall  be  bound 
by  Oath  or  Affirmation,  to  support  this  Constitution;  but  no  religious 
Test  shall  ever  be  lequired  as  a  Qualification  to  any  Office  or  public  Trust 
under  the  United  States. 

ARTICLE  VII. 
Tlie  Ratification  of  the  Conventions  of  nine  States,  sliall  be  sufficient 
for  the  Establishment  of  this  Constitution  between  the  States  so  ratify- 
ing the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  States  present 
the  Seventeentli  Day  of  September  in  the  Year  of  our  Lord  one  thou- 
sand seven  hundred  and  Eighty  seven,  and  of  the  Independance  of  the 
United  States  of  America  the  Twelfth.  In  Witness  whereof  We  have 
hereunto  subscribed  our  Names, 

Go.  Washington — 
Presidt.  and  Deputy/ from  Virginia. 


John  Langdon, 

Nathaniel  Gorham, 

Wm.  Saml.  Johnson, 

Alexander  Hamilton. 

Wil:  Livingston, 
David  Brearley, 


New  Hampshire. 

Massachusetts. 

Connecticut. 

Neio  York. 

New  Jersey. 


Nicholas  Oilman. 
RuFus  King.      , 
Roger  Sherman. 


Wm.  Paterson, 
JoNA,  Dayton. 


CONSTITUTION    OF   THE   UNITED    STATES.  529 

Penn>fi/loania. 


B.  Fr\nklin, 

KOBT.  MoKUIS, 
TlIO:    FiTZSIMONS, 

James  Wilsojs^, 

Geo:  Read, 
JoHX  Dickinson, 
Jaco:  Bkoom, 

James  M' Henry, 
Danl,  Carkoll. 

John  Blair, 

Wm.  Blount, 
Hu.  Williamson. 

J.  RUTLEDGE, 
CHARLEa  PlNCKNEY, 

William  Few, 
Attest: 


Thomas  Mifflin", 
Geo:  Clymer, 
Jared  Ingersoll, 
Gouv:  Morris. 
Delaware. 

Gunning  Bedford,  Jun'r, 

Richard  Bassett. 

Maryland. 

Dan:  of  St.  Thos.  Jenifer. 

Virginia. 

James  Madison,  Jr. 
North  Carolina. 

Rich'd  Dobbs  Spaight, 

South  Carolina. 

Charles  Cotesworth  Pinckney, 
Pierce  Butler. 

Georgia. 

Abr.  Baldwin. 
WILLIAM  JACKSON,  Secretary. 


ARTICLES  IN  ADDITION  TO,  AND  AMENDMENT  OF,  THE  CON- 
STITUTION OF  THE  UNITED  STATES  OF  AMERICA,  PRO- 
POSED BY  CONGRESS,  AND  RATIFIED  BY  THE  LEGISLA- 
TUBES  OF  THE  SEVERAL  STATES  PURSUANT  TO  THE  FIFTH 
ARTICLE  OF  THE  ORIGINAL  CONSTITUTION. 

(The  first  ten  amendments  to  the  Constitution  of  tlie  United  States  were 
proposed  to  the  legislatures  of  the  several  States  by  the  First  Congress,  on  the 
2oth  of  September,  1789.  They  were  ratified  by  the  following  States,  and  the 
notifications  of  ratification  by  the  governors  thereof  were  successively  com- 
municated by  the  President  to  Congress:  New  Jersey,  November  20,  1789; 
Maryland,  December  19,  1789;  North  Carolina,  December  22,  1789;  South 
Carolina,  Jaimaiy  19,  1790;  New  Hampshire,  January  25,  1790;  Delaware, 
January  28,  1790;  Pennsylvania,  March  10,  1790;  New  York,  March  27,  1790; 
Rhode  Island,  June  15,  1790;  Vermont,  November  3,  1791;  and  Virginia,  De- 
cember 15,  1791.  There  is  no  evidence  on  the  journals  of  Congress  that  the 
legislatures  of  Connecticut,  Georgia,  and  Massachusetts  ratified  them.) 

ARTICLE  L 

Congress  shall  make  no  law  respecting  an  establishment  of  religion, 
or  prohibiting  the  free  exercise  thereof;  or  abridging  the  freedom  of 
speech,  or  of  the  press;  or  the  riglit  of  the  people  peaceably  to  assem- 
ble, and  to  petition  the  Government  for  a  redress  of  grievances. 

34 


530  TEEATY-MAKING  POWER  OF  THE  U.  S. 

ARTICLE   II. 
A  well  regulated  Militia,  beiug  necessary  to  the  security  of  a  free 
State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall  not  be  in- 
fringed. 

ARTICLE  III. 
No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,  without 
the  consent  of  the  Owner,  nor  in  time  of  war,  but  in  a  manner  to  be 
prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  and  seizures,  shall  not  be 
violated,  and  no  Warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  Oath  or  affirmation,  and  particularly  describing  the  place  to 
be  searched,  and  the  persons  or  things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infa- 
mous crime,  unless  on  a  presentment  or  indictment  of  a  Grand  Jury, 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  Militia, 
when  in  actual  service  in  time  of  War  or  public  danger;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of 
life  or  limb;  nor  shall  be  compelled  in  any  Criminal  Case  to  be  a  wit- 
ness against  himself,  nor  be  dejirived  of  life,  liberty,  or  property,  with- 
out due  process  of  law;  nor  shall  private  property  be  taken  for  public 
use,  without  just  compensation. 

ARTICLE  VI. 
In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of  the  nature 
and  cause  of  the  accusation;  to  be  confronted  with  the  witnesses  against 
him;  to  have  compulsory  process  for  obtaining  Witnesses  in  his  favor, 
and  to  have  the  Assistance  of  C;ounsel  for  his  defence. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no 
fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any  Court  of  the 
United  States,  than  according  to  the  rules  of  the  common  law. 

ARTICLE  VIII. 
Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor 
cruel  and  unusual  punishments  inflicted. 


CONSTITUTION   OF   THE    UNITED    STATES.  531 

ARTICLE  IX. 
The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be 
construed  to  deny  or  disparage  otliers  retained  by  the  people. 

ARTICLE  X. 
The  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  proiiibited  by  it  to  the  States,  are  reserved  to  the  States  respec- 
tively, or  to  the  people. 

ARTICLE  XI. 

The  Judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  Citizens  of  another  State,  or  by  Citizens 
or  Suhjects  of  any  Foreign  State. 

(The  eleventh  amendment  to  the  Constitution  of  the  United  States  was  pro- 
posed to  the  legislatures  of  the  several  States  by  the  Third  Congress,  on  the  5th 
September,  179i ;  and  was  declared  in  a  message  from  the  President  to  Con- 
gress, dated  the  8th  of  January,  1798,  to  have  been  ratified  by  the  legislatm'es 
of  three- fourths  of  the  States.) 

ARTICLE  XII. 
The  Electors  shall  meet  in  their  respective  states,  and  vote  by  ballot 
for  President  and  Vice-President,  one  of  wliom,  at  least,  shall  not  be 
an  inhabitant  of  the  same  state  with  themselves;  they  shall  name  in 
their  ballots  the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President,  and  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President,  and  of  all  persons  voted  for 
as  Vice-President,  and  of  the  number  of  votes  for  each,  which  lists 
they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  gov- 
ernment of  the  United  States,  directed  to  the  President  of  the  Senate; 
— The  President  of  the  Senate  shall,  in  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates  and  the  votes  shall 
then  be  counted;— The  person  having  the  greatest  number  of  votes  for 
President,  shall  be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  Electors  appointed;  and  if  no  person  have  such  ma- 
jority, then  from  the  persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the  House  of  Repre- 
sentatives shall  choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  states,  the  repre- 
sentation from  each  state  having  one  vote;  a  quorum  for  this  purpose 
shall  consist  of  a  member  or  members  from  two-thirds  of  the  states, 
and  a  majority  of  all  the  states  shall  be  necessary  to  a  choice.  And  if 
the  House  of  Representatives  shall  not  choose  a  President  whenever 
the  right  of  choice  shall  devolve  upon  them,  before  the  fourth  day  of 
March  next  following,  then  the  Vice-President  shall  act  as  President, 
as  in  the  case  of  the  death  or  other  constitutional  disability  of  the 
President.  The  person  having  the  greatest  number  of  votes  as  Vice- 
President,  shall  be  the  Vice-President,  if  such  number  be  a  majority  of 
the  whole  number  of  Electors  appointed,  and  if  no  person  have  a  ma- 


532  TREATY-MAKING  POWER  OF  THE  U.  S. 

jority,  then  fiDin  the  two  highest  uumbers  on  the  list,  the  Senate  shall 
choose  tlie  Vice-President;  a  quorum  for  the  purpose  sliall  consist  of 
two-thirds  of  tlie  wliole  number  of  Senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  clioice.  But  no  persou  conatitu- 
tioaally  ineligible  to  the  ollice  of  President  shall  be  eligible  to  that  of 
Vice-President  of  the  United  States. 

(The  twelfth  amendment  to  the  Constitution  of  the  United  States  was  pro- 
posed to  the  legislatures  of  the  several  States  by  the  Eighth  Congress,  on  the 
12th  of  December,  1803,  m  lieu  of  the  original  third  paragraph  of  the  first  sec- 
tion of  the  second  article ;  and  was  declared  in  a  proclamation  of  the  Secretary 
of  State,  dated  the  25tli  of  September,  1804,  to  have  been  ratified  by  the  legis- 
latures of  three-fourths  of  the  Slates.) 

ARTICLE  XIII. 

Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall  have  been  duly  con- 
victed, shall  exist  within  the  United  States,  or  any  place  subject  to 
their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation. 

(The  thirteenth  amendment  to  the  Constitution  of  the  United  States  was 
proposed  to  the  legislatures  of  the  several  States  by  the  Thirty-eighth  Con- 
gress, on  the  1st  of  February,  1865,  and  was  declared,  in  a  proclamation  of  the 
Secretary  of  State,  dated  the  18th  of  December,  1865,  to  have  been  ratified  by 
the  legislatures  of  twenty-seven  of  the  thirty-six  States,  viz :  Illinois,  Rhode 
Island,  Michigan,  Maiyland,  New  York,  West  Vu-ginia,  Maine,  Kansas,  Massa- 
chusetts, Pennsylvania,  Virginia,  Ohio,  Missouri,  Nevada,  Indiana,  Louisiana, 
Miimesota,  Wisconsm,  Vermont,  Temiessee,  Arkansas,  Connecticut,  New 
Hampshire,  South  Carolina,  Alabama,  North  Carolina,  and  Georgia.) 

ARTICLE  XIV. 

Section  1.  All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States;  nor  shall  any  State  deprive  any  person  of  life,  lib- 
erty, or  property,  without  due  process  of  law;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

Section  2.  Representatives  sliall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,  counting  the  whole  num- 
ber of  persons  in  each  State,  excluding  Indians  not  taxed.  But  wlien 
the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President 
and  Vice  President  of  the  United  States,  Representatives  in  Congress, 
the  Executive  and  Judicial  officers  of  a  State,  or  the  members  of  the 
Legislature  thereof,  is  denied  to  any  of  the  male  inhabitants  of  such 
State,  being  twenty-one  years  of  age,  and  citizens  of  the  United  States, 
or  in  any  way  abridged,  except  for  participation  in  rebellion,  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced  in  the  pro- 
portion which  the  number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such  State. 


CONSTITUTION    OF   THE   UNITED   STATES.  533 

Section  3.  No  person  shall  be  a  Sen  ,tor  or  Representative  in  Con- 
gress, or  elector  of  Presideat  and  Vice  President,  or  hold  any  office, 
civil  or  military,  under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath,  as  a  member  of  Congi-ess,  or  as  an 
officer  of  the  United  States,  or  as  a  member  of  any  State  legislature, 
or  as  an  executive  or  judicial  officer  of  any  State,  to  support  the  Con- 
stitution of  the  United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.  But  Congress  may  by  a  vote  of  two-thirds  of  each  House,  re- 
move such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United  States,  au- 
thorized by  law,  including  debts  incurred  for  payment  of  pensions  and 
bounties  for  services  in  suppressing  insurrection  or  rebellion,  shall  not 
be  questioned.  But  neither  the  United  States  nor  any  State  shall  assume 
or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrection  or  rebel- 
lion against  the  United  States,  or  any  claim  for  the  loss  or  emancipa- 
tion of  any  slave;  but  all  such  debts,  obligations  and  claims  shall  be 
held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  this  article. 

CThe  fourteenth  amendment  to  the  Constitution  of  the  United  States  was 
proposed  to  the  legislatures  of  tlie  several  States  by  the  Thirty-ninth  Congress, 
on  the  16th  of  June,  186(5.  On  the  21st  of  July,  1868,  Congress  adopted  and 
transmitted  to  the  Department  of  State  a  concurrent  resolution,  declaring  that 
"  the  legislatures  of  the  States  of  Comiecticut,  Temiessee,  New  Jersey,  Oregon, 
Vermont,  New  York,  Ohio,  Illinois,  West  Virginia,  Kansas,  Mahie,  Nevada, 
Missouri,  Indiana,  Minnesota,  New  Hampshire,  Massachusetts,  Nebraska,  Iowa, 
Arkansas,  Florida,  North  Carolina,  Alabama,  South  Carolina,  and  Louisiana, 
heuig  tliree-fourths  and  more  of  the  several  States  of  the  Union,  have  ratified 
the  fourteenth  article  of  amendment  to  the  Constitution  of  the  United  States, 
duly  proposed  by  two-thirds  of  each  House  of  the  thirty-ninth  Congress:  There- 
fore Resolved,  That  said  fourteenth  article  is  hereby  declared  to  be  a  part  of  the 
Constitution  of  the  United  States,  and  it  shall  be  duly  promulgated  as  such  by 
the  Secretary  of  State."  The  Secretary  of  State  accordingly  issued  a  proclama- 
tion, dated  the  28th  of  July,  1868,  declaring  that  the  proposed  fourteenth  amend- 
ment had  been  ratified,  in  the  maimer  hereafter  mentioned,  by  the  legislatures 
of  thirty  of  the  thirty-six  States,  viz :  Connecticut,  .lime  ."0,  1866 ;  New  Hamp- 
shire, July  7,  1866;  Tennessee,  July  19,  1866;  New  Jersey,  September  11,  1866, 
(and  the  legislature  of  the  same  State  passed  a  resolution  in  April,  1868,  to 
withdraw  its  consent  to  it ;)  Oregon,  September  19, 1866 ;  Vermont,  November  9, 
1866 ;  Georgia  rejected  it  November  l.S,  1866,  and  ratified  it  July  21, 1868 ;  North 
CaroliJia  rejected  it  December  4,  1866,  and  ratified  it  July  4,  1868;  South  Caro- 
lina rejected  it  December  20,  1866,  and  ratified  it  July  9,  1868 ;  New  York  rati- 
fied it  January  10,  1867;  Ohio  ratified  it  .Tanuaiy  11,  1867,  (and  the  legislature 
of  the  same  State  passed  a  resolution  in  .lanuary,  1868,  to  witlidraw  its  con.sent 
to  it;)  Illinois  ratified  it  January  15,  1867;  West  Virginia,  January  16,  1867; 
Kansas,  January  18, 1867;  Maine,  January  19,  1867;  Nevada,  January  22,  1867; 
Missouri,  January  26,  1867;  Indiana,  January  29,  1867;  Minnesota,  February  1, 
1867;  Rhode  Island,  February  7,  1867;  Wisconsin,  Folmiary  13,  1867;  Pennsyl- 
vania,  February  13, 1867 ;  Michigan,  February  15, 1867  ;  Massachusetts,  March  20, 
1867;  Nebraska,  June  15,  1867;  Iowa,  April  3,  1868;  Arkansas,  April  6,  1868; 
Florida,  June  9,  1868 ;  Louisiana,  July  9,  1868 ;  and  Alabama,  July  13,  1868, 


-)o4  TREATY-MAKING  PCAVER  OF  THE  U.  S. 

Ceorgia  again  ratified  the  ainendmcnt  February  2,  1870.  Texas  rejected  it  No- 
vember 1,  ISGG,  and  laitilied  it  F(>bruary  18, 1870.  Virginia  rejected  it  January  19, 
18li7,  and  ratified  October  8,  1809.  The  amendment  was  rejected  by  Kentucky 
January  10,  18t37 ;  by  Delaware  February  8,  18G7 ;  by  Maryland  March  23,  18G7 ; 
and  was  not  afterward  ratified  by  either  State.) 

ARTICLE  XV. 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States  or  by  any  State  on  ac- 
count or  race,  color,  or  previous  condition  of  servitude. 

Section  2.  The  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

(The  fifteenth  amendment  to  the  Constitution  of  the  United  States  was  pro- 
posed to  tlie  legislatui-es  of  the  several  States  by  the  Fortieth  Congress  on  the 
27th  of  February,  1869,  and  was  declared,  in  a  proclamation  of  the  Secretaiy  of 
State,  dated  March  30;  1870,  to  have  been  ratified  by  the  legislatures  of  twenty- 
nine  of  the  thirty-seven  States.  The  dates  of  these  ratifications  (arranged  in  the 
order  of  their  reception  at  the  Department  of  State)  were :  from  North  Carolina, 
March  5,  1869 ;  West  Virginia,  March  3, 1869 ;  Massachusetts,  March  9-12, 1869 ; 
"Wisconsm,  March  9,  1869;  Mame,  March  12,  1869;  Louisiana,  March  5,  1869; 
Michigan,  March  8,  1869;  South  Carolina,  March  16,  1869;  Pennsylvania, 
March  26,  1869 ;  Arkansas,  March  30, 1869 ;  Connecticut,  May  19, 1869 ;  Florida, 
June  15,  1869 ;  Illinois,  March  5,  1869 ;  Indiana,  May  13-14,  1869 ;  New  York, 
March  17-April  14,  1869,  (and  the  legislature  of  the  same  State  passed  a  resolu- 
tion January  5,  1870,  to  withdraw  its  consent  to  it;)  New  Hampshire,  July  7, 
1869;  Nevada,  March  1,  1869;  Vermont,  October  21,  1869;  Virginia,  October  8, 
1869;  Missouri,  January  10, 1870;  Mississippi,  January  15-17, 1870 ;  Ohio,  Janu- 
ary'27,  1870;  Iowa,  February  3, 1870;  Kansas,  January,  18-19, 1870 ;  Minnesota, 
February  19,  1870;  Rhode  Island,  January  18,  1870;  Nebraska,  February  17, 
1870 ;  Texas,  February  18,  1870.  The  State  of  Georgia  also  ratified  the  amend- 
ment February  2,  1870.) 


ANALYSIS  AND  CLASSIFICATION  OF  CASES  CITED 
IN  BRIEFS,  ARGUMENTS  AND  OPINIONS  IN  IN- 
SULAR CASES. 


There  were  about  three  hundred  cases  cited  in  the  briefs,  arguments 
and  opinions  in  the  Insular  Cases,  (exclusive  of  those  lelating  to  the 
form  of  action,  construction  of  the  Customs  Administrative  Act  as  to 
procedure,  and  to  the  Jurisdiction  of  United  States  Circuit  Courts  and 
the  United  States  Court  of  Claims).  An  effort  has  been  made  to  classify 
the  cases  cited  on  constitutional  points  under  the  following  headings 
(for  a  consecutive  list  of  these  headings  I-XXV,  see  Table  of  Contents 
of  Insular  Cases,  pp.  462,  463,  ante. ) 

The  analysis  is  necessarily  imperfect,  many  of  the  cases  having  been 
cited  on  so  many  points  that  it  has  been  impossible  to  make  a  perfect 
classification. 

I. 

Nationality  and  Sovereignity  of  the  United  States  and  Sover- 
eign Powers  of  Central  Government. 

Ableman  vs.  Booth,  U.  S.  Sup.  Ct.  1858,  21  Howard,  506,  Taney,  Ch.  J. 

American  Ins.  Co.  vs.  Canter  {Florida  Case),  U.  S.  Sup.  Ct.  1828,  1 
Peters,  511,  Marshall,  Ch.  J. 

Ainy  Warwick,  The,  U.  S.  Dist.  Ct.  Mass.  1862;  2  Sprague,  123,  150, 
Sprague,  J. 

Antelope,  The,  U.  S.  Sup.  Ct.  1825,  10  Wheaton,  66,  Marshall,  Ch.  J. 

Barron  vs.  Baltimore,  U.  S.  Sup,  Ct.  1833,  7  Peters,  243,  Marshall, 
Ch.  J. 

Briscoe  vs.  Bank,  U.  S.  Sup.  Ct.  1837,  11  Peters,  257,  McLean,  J. 

Buckner  vs.  Finley,  U.  S.  Sup.  Ct.  1829,  2  Peters,  586,  Washington,  J. 

Chae  Chan  Ping  vs.  United  States  [Chinese  Exclusion  Case),  U.  S.  Sup. 
Ct.  1889,  1,30  U.  S.  581,  Field,  J. 

Charkieh,  The,  High  Court  of  Adm.  1873,  L.  R.,  4  A  &  E.  59,  and  Cor- 
bett's  Cas.  Int.  Law,  p.  9,  Sir  Roi5ert  Phillimoke. 

Chew  Heong  vs.  United  States,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  536,  Har- 
lan, J. 

Chicago,  etc.,  Ry.  Co.  vs.  Toinpkins,  U.  S.  Sup.  Ct.  1900,  176  U.  S.  167, 
Brewek,  J. 

Chisholm  vs.  Georgia,  U.  S.  Sup.  Ct.  1793,  2  Dallas,  419,  Jay,  Ch.  J., 
Iredell,  Blair,  Wilson,  Gushing,  JJ. 

Cohens  vs.  Virginia,  U.  S.  Sup.  Ct.  1821,  0  Wheaton,  264,  Marshall, 
Ch.  J. 

Coleman  vs.  Tennessee,  U.  S.  Sup.  Ct.  1878,  97  U.  S.  509,  Field,  J. 

535 


Oob  TREATY-MAlvING  POWER  OF  THE  U.  S. 

Cooper,  In  rr,  {Bernvi  Sea  Cases)  U.  S.  Sup.  Ct.  1891,  138  U.  S.  404, 
anil  1892,  14:5  U.  S.  472,  Fuller,  Ch.  J. 

Crandall  vs.  Nevada,  U.  S.  Sup.  Ct,  18G7,  G  Wallace,  35,  Miller,  J. 

Debs,  In  re,  U.  S.  Sup.  Ct.  1895,  158  U.  S.  564,  Bkewkr,  J. 

Dodije  vs.  Woolsey,  U.  S.  Sup.  Ct.  1855,  18  Howaid,  3:51,  Wayne,  J. 

Bow  V.  Johnson,  U.  S.  Sup.  Ct.  1879,  100  U.  S.  158,  Field,  J. 

Ekiit,  yishimnra,  vs.  United  States,  U.  S.  Sup.  Ct.  1891,  142  U.  S.  651, 
Gray,  J. 

Exchange,  Schooner,  vs.  McFadden,  U.  S.  Sup.  Ct.  1812,  7  Cranch,  116, 
Marshall,  Ch.  J. 

Fowj  Yiie  Ting  vs.  United  States  {Chinese  Exclusion  Case),  U.  S.  Sup. 
Ct.  1893,  149  U.  S.  698,  Gray.  J. 

Georgia  vs.  Stanton,  U.  S.  Sup.  Ct.  1867,  6  Wallace,  50,  Nelson,  J. 

Gibbons  vs.  Ogden,  U.  S.  Sup.  Ct.  1824,  9  Wheaton,  1,  Marshall, 
Ch.  J. 

Gibbons  vs.  United  States,  U.  S.  Sup.  Ct.  1868,  8  Wallace,  269,  Mil- 
ler, J. 

GilmanYS.  Philadelphia,  U.  S.  Sup.  Ct.  1865,  3  Wallace,  713,  Swayne,  J. 

Humilton  vs.  I)illi7i,  U.  S.  Sup.  Ct.  1874,  21  Wall.  73,  Bradley,  J. 

Hepburn  vs.  Grisioold,  U.  S.  Sup.  Ct.  18G9,  8  Wallace,  603,  Chase,  Ch.  J. 

Jones  vs.  United  States  {Navassa  Islands  Case),  U.  S.  Sup.  Ct.  1890, 
137  U.  S.  202,  Gray,  J. 

Kennettvs.  Chambers,  U.  S.  Sup.  Ct,  1852, 14 Howard,  38,  Taney,  Ch.  J. 

Kilbourn  vs.  Thompson,  U.  S.  Sup.  Ct.  1880,  103  U.  S.  168,  Miller,  J, 

Lane  vs.  Oregon,  U.  S.  Sup.  Ct.  1868,  7  Wallace,  71,  Chase,  Ch.  J. 

Legal  Tender  Cases,  U.  S.  Sup.  Ct.  1869,  8  AVallace,  603,  Chase,  Ch.- J,; 
1870,  12  Wallace,  457,  Strong,  J.;  1884, 110 U.  S.  421,  Gray,  J. 

Livingstone  vs.  Moore,  U.  S.  Sup.  Ct.  18-33,  7  Peters,  469,  Johnson,  J. 

Luther  vs.  Borden,  U.  S.  Sup.  Ct.  1849,  7  Howard,  1,  Taney,  Ch.  J. 

McCulloch  vs.  Maryland,  U.  S,  Sup.  Ct.  1819,  4  Wheaton,  316,  Mar- 
shall, Ch.  J. 

McBaniel  vs.  McMeekin,  Ct.  of  App.  So.  Car.  1834,  2  Hill  S.  C.  Law, 
Part  I,  p.  1,  O'Neall,  Johnson,  Harper,  JJ. 

McPherson  vs.  Blacker,  U.  S.  Sup.  Ct.  1892, 146  U.  S.  1,  Fuller,  Ch.  J. 

Marbury  vs.  Madison,  U.  S.  Sup.  Ct.  1803,  1  Cranch,  137,  Marshall, 
Ch.  J. 

Martin  vs.  Waddell,  U.  S.  Sup.  Ct.  1842,  16  Peters,  367,  Taney,  Ch.  J. 

Miller  vs.  United  States,  U.  S.  Sup.  Ct.  1870,  11  Wallace,  268,  Strong,  J. 

Mormon  Church  vs.  United  States,  U.  S.  Sup.  Ct.  1890,  136  U.  S.  1, 
Bradley,  J. 

Munn  vs.  Illinois,  U.  S.  Sup.  Ct.  1876,  94  U.  S.  113,  Waite,  Ch.  J. 

Neagle,  In  re,  U.  S.  Sup.  Ct.  1890,  135  U.  S.  1,  Miller,  J. 

Nexo  Orleans  vs.  United  States,  U.  S.  Sup.  Ct.  1836,  10  Peters,  662, 
McLean,  J. 

Penhalloio  vs.  Doane,  U.  S.  Sup.  Ct.  1795,  3  Dallas,  54,  Paterson, 
Blair,  Gushing,  JJ. 

Phillips  vs.  Payne,  U.  S.  Sup.  Ct.  1875,  92  U.  S.  130,  Swayne,  J. 

Priggvs.  Pennsylvania  (Fugitive  Slave  Law  Case),  U.  S.  Sup.  Ct.  1842, 
16  Peters,  539,  Story,  J. 


INSULAR  CASES  APPENDIX.  537 

Quarles,  In  re,  U.  S.  Sup.  Ct.  1895,  158  U.  S.  532,  Gray,  J. 

Republic  vs.  Sweers,  Sup.  Ct.  Peana.  1779,  1  Dallas,  45,  McKean, 
Ch.  J. 

Rhode  Island  vs.  Massachusetts,  U.  S.  Sup.  Ct.  1838,  12  Peters,  657, 
Baldwin,  J. 

Rose  vs.  Himeley,  U.  S.  Sup.  Ct.  1808,  4  Crancli,  241,  Marshall,  Ch.  J. 

Ross,  In  re,  U.  S.  Sup.  Ct.  1891,  140  U.  S.  453,  Field,  J. 

Scott  vs.  Sandford  {Bred  Scott  Case),  U.  S.  Sup.  Ct.  1857,  19  Howard, 
393,  Taney,  Ch.  J. 

Siebold,  Ex  parte,  U.  S.  Sup.  Ct.  1879,  100  U.  S.  371,  Bradley,  J. 

Slaughterhouse  Cases,  U.  S.  Sup.  Ct.  1872,  16  Wallace,  36,  Miller,  J. 

Swan,  The,  U.  S.  Dist.  Ct.  Washington,  1892,  50  Fed.  Rep.  108,  Han- 
ford,  J. 

Tennessee  vs.  Davis,  U.  S.  Sup.  Ct.  1879,  100  U.  S.  257,  Strong,  J. 

Texas  vs.  White,  U.  S.  Sup.  Ct.  1868,  7  Wallace,  700,  Chase,  Ch.  J. 

United  States  vs.  Holliday,  U.  S.  Sup.  Ct.  1865,  3  Wallace,  407,  Mil- 
ler, J. 

United  States  vs.  Palmer,  U.  S.  Sup.  Ct.  1818,  3  Wheaton,  610,  Mae- 
shall,  Ch.  J. 

United  States  vs.  Williams,  U.  S.  Dist.  Ct.  Penna.  1852,  Fed.  Cas. 
16,705,  4  Hall's  Am.  L.  J.  486,  Kane,  J. 

United  States  vs.  Yorba,  U.  S.  Sup.  Ct.  1863,  1  Wallace,  412,  Field,  J. 

Ware  vs.  Hylton,  U.  S.  Sup.  Ct.  1796,  3  Dallas,  199,  Chase,  Wilson, 
Paterson,  Gushing,  Iredell,  JJ. 

Williams  vs.  Suffolk  Ins.  Co.,  U.  S.  Sup.  Ct.  1839,  13  Peters,  415,  Mc- 
Lean, J. 

Wong  Wing  vs.  United  States,  U.  S.  Sup.  Ct.  1896,  163  U.  S.  228, 
Shiras,  J. 

II. 

Power  of  United  States  to  Acquire  Territory. 

American  Ins.  Co.  vs.  Canter  (Florida  Case),  U.  S.  Sup.  Ct.  1828,  1 
Peters,  511,  Marshall,  Ch.  ,J. 

Boj/d  <fec.  vs.  Nebraska,  U.  S.  Sup.  Ct.  1892,  143  U.  S.  135,  Ful- 
ler, Ch.  J. 

Clinton  vs.  Englebrecht,  U.  S.  Sup.  Ct.  1871,  13  Wallace,  434,  Chase, 
Ch.  J. 

Delassus  vs.  United  States,  U.  S.  Sup.  Ct.  1835,  9  Peters,  117,  Mar- 
shall, Ch.  J. 

Doe  (Clark)  vs.  Braden,  U.  S.  Sup.  Ct.  1853,  16  Howard,  635,  Taney, 
Ch.  J. 

Endleman  vs.  United  States,  U.  S.  Cir.  Ct.  App.  9th  Cir.  1898,  57  U.  S. 
App.  1,  Morrow,  J. 

Fleming  vs.  Page  ( Tampico  Duty  Case),  U.  S.  Sup.  Ct.  1850,  9  Howard, 
603,  Taney,  Ch.  J. 

Foster  vs.  Neilson,  U.  S.  Sup.  Ct.  1829,  2  Peters,  253,  Marshall,  Ch.  J. 

Garcia  vs.  Lee,  U.  S.  Sup.  Ct.  1838,  12  Peters,  511,  Taney,  Ch.  J. 

Holden  vs.  Hardy,  U.  S.  Sup.  Ct.  1898,  169  U.  S.  366,  Brown,  J. 


538  TREATY-MAKING  POWEll  OF  THE  U.  S. 

Johnson  vs.  Mcintosh,  U.  S.  Sup.  Ct.  1823,  8  Wheaton,  543,   Mar- 
shall, Ch.  J. 

Jones  vs.  United  States  {Navassa  Island  Case),  U.  S,  Sup.  Ct.  1890,  137 
U.  S.  202,  Gkay,  J. 

Leitensdorftr  vs.  Webb,  U.  S.  Sup.  Ct.  1857,  20  Howard,  176,  Daniel,  J. 

McKay  vs.   Campbell,  U.  S.  Dist.   Ct.   Oregon,  1871,  2  Sawyer,  118, 
Deady,  J. 

Mitchel  vs.  United  States,  U.  S.  Sup.  Ct.  1835,  9  Peters,  711,  Bald- 
win, J. 

Mormon  Church  vs.  United  States,  U.  S.  Sup.  Ct.  1890,  136  U.  S.  1, 
Bradley,  J. 

Morris  vs.  United  States,  U.  S.  Sup.  Ct.  1899,  174  U.  S.  196,  Shiras,  J. 

Neelerj  vs.  Henkel,  U.  S.  Sup.  Ct.  1901,  180  U.  S.  109,  Harlan,  J. 

Ortiz,  Ex  parte,  U.  S.  Cir.  Ct.  Minu.  1900,  100  Fed.  Kep.  955,  Loch- 
ran,  J. 

Pollard  vs.  Ragan,  U.  S.  Sup.  Ct.  1845,  3  Howard,  212,  McKinley,  J.- 

Pollard's  Heirs  vs.  Kibbe,  U.  S.  Sup.  Ct.  1840,  14  Peters,  .353,  Thomp- 
son, J. 

Scott  vs.  Sandford  (Bred  Scott  Case),  U.  S.  Sup.  Ct.  1857,  19  Howard, 
393,  Taney,  Ch.  J. 

Shicely  vs.  Bowlby,  U.  S.  Sup.  Ct.  1894,  152  U.  S.  1,  Gray,  J. 

Soulard  vs.   United  States,  U.  S.  Sup.  Ct.  1830,  4  Peters,  511,  Mar- 
shall, Ch.  J. 

Stearns  vs.    United    States,    U.    S.    Sup.    Ct.    1867,   6   Wallace,    589, 
Swayne,  J. 

Strother  vs.  Lucas,  U.  S.  Sup.  Ct.  18.32,  6  Peters,  763,  Thompson,  J. 

United  States  vs.  Arredvndo,  U.  S.  Sup.  Ct.  1832,  6  Peters,  691,  Bald- 
win, J. 

United  States  vs.  Castillero,  U.  S.  Sup.  Ct.  1862,  2  Black.  1,  Clif- 
ford, J. 

United  States  vs.  Gratiot,  U.  S.  Sup.  Ct.  1840,  14  Peters,  526,  Thomp- 
son, J. 

United  States  vs.  The  Nancy,  U.  S.  Cir.  Ct.  Penna.  1814,  3  Wash.  281, 
Washington,  J. 

United  States  vs.  Percheman,  U.  S.  Sup.  Ct.  1833,  7  Peters,  51,  Mar- 
shall, Ch.  J. 

United  States  vs.  Repentigny,  U.  S.  Sup.  Ct.  1866,  5  Wallace,  211,  Nel- 
son, J. 

United  States  V8.  Reynes,  U.  S.  Sup.  Ct.  1850,  9  Howard,  127,  Daniel,  J. 

III. 
The  Constitution  of  the  United  States;  its  Operation  in,  and 
Extension  over.  Territory  of  the  United  States. 
Alexander  vs.  Roulet,  U.  S.  Sup.  Ct.  1871,  13  Wallace,  386,  Davis,  J. 
American  Ins.   Co.  vs.   Canter  (Florida  Case),  U.  S,  Sup.  Ct.  1828,  1 
Peters,  511,  Marshall,  Ch.  J. 

American  Publishing  Co.  vs.  Fisher  (  Utah  Jury  Case),  U.  S.  Sup.  Ct. 
1897,  166  U.  S.  464,  Brewer,  J. 
Baumann  vs.  Ross,  U.  S.  Sup.  Ct.  1896,  167  U.  S.  548,  Gray,  J. 


mSTTLAR  CASES  APPENDIX.  539 

Benner  vs.  Porter,  U.  S.  Sup.  Ct.  1850,  9  Howard,  235,  Xelson,  J. 

Black  vs.  Jackson,  U.  S,  Sup.  Ct.  1899,  177  U.  S.  349,  Harlan,  J. 

Boyd  vs.  Nebraska,  U.  S.  Sup.  Ct.  1892,  143  U.  S.  135,  Fuller,  Ch.  J. 

City  of  Panama,  The,  U.  S.  Sup.  Ct.  1879,  101  U.  S.  453,  Clifford,  J. 

Clinton  vs.  Englebrecht,  U.  S.  Sup.  Ct.  1871,  13  Wallace,  434,  Chase, 
Ch.  J. 

Cross  vs.  Harrison  (San  Francisco  Duty  Case),  U.  S.  Sup.  Ct.  1853,  16 
Howard,  164,  Wayne,  J. 

Endleman  vs.  United  States,  U.  S.  Cir.  Ct.  App.  9tli  Cir.  1898, 57  U.  S. 
App.  1,  Morrow,  J. 

Fleming  vs.  Page  (  Tampico  Duty  Case),  U.  S.  Sup.  Ct.  1850,  9  Howard, 
603,  Taney,  Ch.  J. 

Holden  vs.  Hardy,  U.  S.  Sup.  Ct.  1898,  169  U.  S.  366,  Brown,  J. 

Hornbuckle  vs.  Toombs,  U.  S.  Sup.  Ct.  1873,  18  Wallace,  648,  Brad- 
ley, J. 

Leitensdorfer  \s.  Webb,  U.  S.  Sup.  Ct.  1857,  20  Howard,  176,  Daniel,  J. 

Loughborough  vs.  Blake,  U.  S.  Sup.  Ct.  1820,  5  Wheatou,  317,  Mar- 
shall, Ch.  J. 

McAllister  vs.  United  States,  U.  S.  Sup.  Ct.  1891,  141  U.  S.  174,  Har- 
lan, J. 

Miners''  Bank  vs.  Iowa,  U.  S.  Sup.  Ct.  1851,  12  Howard,  1,  Daniel,  J. 

Mitchel  vs.  United  States,  U.  S.  Sup.  Ct.  1835,  9  Peters,  711,  Bald- 
win, J. 

Mormon  Church  vs.  United  States,  U.  S.  Sup.  Ct.  1890,  136  U.  S.  1, 
Bradley,  J. 

Murphy  vs.  Ramsey,  U.  S.  Sup.  Ct.  1885,  114  U.  S.  15,  Matthews,  J. 

National  Bank  vs.  County  of  Yankton,  U.  S.  Sup.  Ct.  1879,  101  U.  S. 
129,  Waite,  Ch.  J. 

Ortiz  Ex  parte,  U.  S.  Cir.  Ct.  Minn.  1900, 100  Fed.  Rep.  955,  Lochran,  J. 

Pollard  vs.  Hagan,  U.  S.  Sup.  Ct.  1845,  3  Howard,  212,  McKinley,  J. 

Pollard's  Heirs  vs.  Eibbe,  U.  S.  Sup.  Ct.  1840,  14  Peters,  353,  Thomp- 
son, J. 

Reynolds  vs.  United  States,  U.  S.  Sup.  Ct.  1878,  98  U.  S.  145,  Waite, 
Ch.  J, 

Roberts  vs.  Reilly,  U.  S.  Sup.  Ct.  1885,  116  U.  S.  80,  Matthews,  J. 

Scott  vs.  Sandford  (Dred  Scott  Case),  U.  S.  Sup.  Ct.  1857, 19  Howard, 
393,  Taney,  Ch.  J. 

Sere  vs.  Pilot,  U.  S.  Sup.  Ct.  1810,  6  Cranch,  332,  Marshall,  Ch.  J. 

Shively  vs.  Bowlby,  U.  S.  Sup.  Ct.  1894,  152  U.  S.  1,  Gray,  J. 

Snow  vs.  United  States,  U.  S.  Sup.  Ct.  1873,  18  Wallace,  317,  Brad- 
ley, J. 

Springmlle  vs.  Thomas,  U.  S.  Sup.  Ct.  1897,  168  U.  S.  707,  Fuller, 
Ch.  J. 

Strader  vs.  Graham,  U.  S.  Sup.  Ct.  1850,  10  Howard,  82,  Taney,  Ch.  J. 

Strother  vs.  Lucas,  U.  S.  Sup.  Ct.  1832,  6  Peters,  763,  Thompson,  J. 

Talbott  vs.  Silver  Bow  Co.,  U.  S.  Sup.  Ct.  1891, 1,39  U.  S.  438,  Brewer,  J. 

Thomas  vs.  Ga>y,  U.  S.  Sup.  Ct.  1898,  169  U.  S.  2G4,  Shiras,  J. 

Thompson  vs.  Utah,  U.  S.  Sup.  Ct.  1898,  170  U.  S.  343,  Harlan,  J. 


540  treaty-makinct  power  of  the  u.  s. 

United  States  vs.  Forty-three  Gallons,  etc.,  U.  S.  Sup.  Ct.  1876,  93  U.  S. 
188,  Davis,  J.,  and  1883,  108  U.  S.  491,  Field,  J. 

United  States  vs.  Gratiot,  U.  S.  Sup.  Ct.  1840,  14  Peters,  526,  Thomp- 
son, J. 

United  States  vs.  Eagama,  U.  S.  Sup.  Ct.  188G,  118  U.  S.  375,  Millek,  J. 

United  States  vs.  T/ie  Nancy,  U.  S.  Cir.  Ct.  Penua.  1814,  3  Wash.  281, 
Washington,  J. 

Webster  vs.  Beid,  U.  S.  Sup.  Ct.  1850,  11  Howard,  437,  McLean,  J. 

IV. 
Status  of  the  District  of  Columbia. 

Barnes  vs.  District  of  Columbia,  U.  S.  Sup.  Ct.  1875,  91  U.  S.  542, 
Hunt,  J. 

Barney  vs.  Baltimore  City,  U.  S.  Sup.  Ct.  1867,  6  Wallace,  280,  Mil- 
ler, J. 

Callan  vs.  Wilson,  U.  S.  Sup.  Ct.  1887,  127  U.  S.  540,  Harlan,  J. 

Capital  Traction  Co.  vs.  Hof,  U.  S.  Sup.  Ct.  1899,  174  U.  S.  1,  Gray,  J. 

Geofroy  vs.  Riggs,  U.  S.  Sup.  Ct.  1890,  133  U.  S.  258,  Field,  J. 

Gibbons  vs.  District  of  Columbia,  U.  S.  Sup.  Ct.  1886,  116  U.  S.  404, 
Gray,  J. 

Hepburn  vs.  Ellzey,  U.  S.  Sup.  Ct.  1805,  2  Crancli,  445,  Marshall,  Cli.  J. 

Hooe  vs.  Jamieson,  U.  S.  Sup.  Ct.  1897,  166  U.  S.  395,  Fuller,  Ch.  J. 

Kendall  vs.  United  States,  U.  S.  Sup.  Ct.  1838,  12  Peters,  524,  Thomp- 
son, J. 

Lougborough  vs.  Blake,  U.  S.  Sup.  Ct.  1820,  5  Wheaton  317,  Mar- 
shall, Ch.  J. 

Mattingly  vs.  District  of  Columbia,  U.  S.  Sup.  Ct.  1878,  97  U.  S.  687, 
Strong,  J. 

Metropolitan  R.  R.  Co.  vs.  District  of  Columbia,  U.  S.  Sup,  Ct.  1889, 
132  U.  S.  1,  Bradley,  J. 

Stoutenbergh  vs.  Hennick,  U.  S.  Sup.  Ct.  1889,  129  U.  S.  141,  Ful- 
ler, Ch.  J. 

V. 

Construction  of  the  Constitution  of  the  United  States. 

Boyd  vs.United,  U.  S.  Sup.  Ct.  1886,  116  U.  S.  616,  Bradley,  J. 

Ckisholm  vs.  Georgia,  U.  S.  Sup.  1793,  2  Dallas,  419,  ,Jay,  Ch.  J.,  Ire- 
dell, Blair,  Wilson,  Gushing,  J  J. 

Brownvs.  Maryland,  U.  S.  Sup.  Ct.  1827,  12  Wheaton,  419,  Marshall, 
Ch.  J. 

Cohens  vs.  Virginia,  U.  S.  Sup.  Ct.  1821,  6  Wheaton,  264,  Marshall, 
Ch.  J. 

County  of  Wilson  vs.  National  Bank,  U.  S.  Sup.  Ct.  1880,  103  U.  S. 
770,  Wood,  J. 

Dartmouth  College  vs.  Woodwcird,  U.  S.  Sup.  Ct.  1819,  4  Wheaton,  518, 
Marshall,  Ch.  J. 

Field  vs.  Clark,  U.  S.  Sup.  Ct.  1892,  143  U.  S.  649,  Harlan,  J. 

Fletcher  vs.  Peck,  U.  S.  Sup.  Ct.  1810,  6  Cranch  87,  Marshall, 
Ch.  J. 


INSULAR  CASES  APPENDIX.  641 

Genessee  Chief,  The,  U.  S.  Sup.  Ct.  1851,  12  Howard,  443,  Taney, 
Ch.  J. 

Gibbons  vs.  Ogden,  U.  S.  Sup.  Ct,  1824,  9  Wheaton,  1,  Marshall, 
Ch.  J. 

Hepburn  vs.  Griswold,  {Legal  Tender  Case)  U.  S,  Sup.  Ct.  1869,  8  Wal- 
lace, 603,  Chase,  Cli.  J. 

Interstate  Com.  Coinni.  vs.  Brhnson,  U.  S.  Sup.  Ct.  1894,  154  U.  S.  447, 
Harlan,  J. 

Johnson\s.  Mcintosh,  U.  S.  Sup.  Ct.  1823,  8  Wheaton,  543,  Marshall, 
Ch.  J. 

Kennard  vs.  Louisiana,  U.  S.  Sup.  Ct.  1875,  92X7.  S.  480,  Waite,  Ch.  J. 

Knowlton  vs.  Moore  (  War  Revenue  Inheritance  Tax  Case),  U.  S.  Sup. 
Ct.  1900,  178  U.  S.  41,  White,  J. 

McCulioch  vs.  Maryland,  U.  S.  Sup.  Ct.  1819,  4  Wheaton  316,  Mar- 
shall, Ch.  J. 

McPherson  vs.  Blacker,  U.  S.  Sup.  Ct.  1892, 146  U.  S.  1,  Fuller,  Ch.  J, 

Marbury  vs.  Madison,  U.  S.  Sup.  Ct.  1803,  1  Cranch,  137,  Marshall, 
Ch.  J. 

Milligan,  Ex  parte,  U.  S.  Sup.  Ct.  1866,  4  Wallace,  2,  Davis,  J. 

Missouri  vs.  Lewis,  U.  S.  Sup.  Ct.  1879,  101  U.  S.  22,  Bradley,  J. 

Monongahela  Nav.  Co.  vs.  United  States,  U.  S.  Sup.  Ct.  1893,  148  U.  S. 
312,  Brewer,  J. 

Mormon  Church  vs.  United  States,  IT.  S.  Sup.  Ct.  1890,  136  U.  S.  1, 
Bradley,  J. 

MurpMjvs.  Bamsey,  U.  S.  Sup.  Ct.  1885,  114  U.  S.  15,  Matthews,  J. 

Neely  vs.  Henkel,  U.  S.  Sup.  Ct.  1901,  180  U.  S.  109,  Harlan,  J. 

New  York  vs.  Miln  [Passenger  Case),  U.  S.  Sup.  Ct.  1837,  11  Peters, 
102,  Barbour,  J. 

Permolivs.  Municipality,  U.  S.  Sup.  Ct.  1845,  3  Howard,  589,  Cat- 
ron, J. 

Pollock  vs.  Farmers'  L.  &  T.  Co.  (Income  Tax  Case),  V.  S.  Sup.  Ct. 
1895,  157  U.  S.  429,  Fuller,  Ch.  J. 

Prigg  vs.  Pennsylvania  {Fugitive  Slave  Law  Case),  U.  S.  Sup.  Ct.  1842, 
16  Peters,  539,  Story,  J. 

Robertson  vs.  Baldwin,  U.  S.  Sup.  Ct.   1897,  165  U.  S.  275,  Brown,  J. 

Ross,  In  re,  U.  S.  Sup.  Ct.  1891,  140  U.  S.  453,  Field,  J. 

Scott  vs.  Sandford  {Bred  Scott  Case),  U.  S.  Sup.  Ct.  1857,  19  Howard, 
393,  Taney,  Cli.  J. 

Shively  vs.  Bowlby,  U.  S.  Sup.  Ct.  1894,  152  U.  S.  1,  Gray,  J. 

Slaughterhouse  Cases,  U.  S.  Sup.  Ct.    1872,  16  Wallace,  36,  Miller,  J. 

Stuart  vs.  Laird,  U.  S.  Sup.  Ct.  1803,  1  Cranch,  299,  Patekson,  J. 

Texas  vs.  White,  U.  S.  Sup.  Ct.  1868,  7  Wallace,  700,  Chase,  Ch.  J. 

United  States  vs.  Joint  Traffic  Ass'n.,  U.  S.  Sup.  Ct.  1898,  171  U.  S. 
505,  Pkckham,  J. 

United  States  vs.  Wong  Kim  Ark,  {Chinese  Baby  Case)  U.S.  Sup.  Ct. 
1898,  169  U.  S.  649,  Gray,  J. 

Ware  vs.  Hylton,  U.  S.  Sup.  Ct  1796,  3  Dallas,  199,  Chase,  Wilson, 
Paterson,  Cushing,  Iredioll,  ,JJ. 

Yick  Wo  vs.  Hopkins,  U.  S.  Sup.  Ct.  1886,  118  U.  S.  356,  Matthews,  J. 


542  TREATY-MAKING  POWER  OF  THE  U.  S. 

VI. 

Division  of  Sovereignty  Between  the  Federal  Government  and 
State  Governments. 

Ableryian  vs.  Booth,   U.  S.  Sup.  Ct.  1858,  21  Howard,  506,  Taney, 
Cb.  J. 

Chae  Chan  Ping  vs.  United  States  {Chinese  Exclusion  Case),  U.  S.  Sup. 
Ct.  1889,  130  U.  S.  581,  Field,  J. 

Chew  Heowj  vs.  United  States,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  536,  Har- 
lan, J. 

Chisholm.  vs.  Georgia,  U.  S.  Sup.  Ct.  1793,  2  Dallas,  419,  Jay,  Ch.  J., 
Iredell,  Blair,  Wilson,  Gushing,  J  J. 

Cohens  vs.  Virginia,  U.  S.  Sup.  Ct.  1821,  6  Wheaton,  264,  Marshall, 
Ch.  J. 

Coleman  vs.  Tennessee,  U.  S.  Sup.  Ct.  1878,  97  U.  S.  509,  Field,  J. 

Cook  vs.  United  States,  U.  S.  Sup.  Ct.  1891,  138  U.  S.  157,  Harlan,  J. 

Cooley  vs.  Board  of  Port  Wardens,  U.  S.  Sup.  Ct,  1851,  12  Howard, 
299,  Curtis,  J. 

Crutc.her  vs.  Kentucky,  U.  S.  Sup.  Ct.  1891,  141  U.  S.  47,  Bradley,  J. 

Dartmouth  College  vs.  Woodward,  U.  S.  Sup.  Ct.  1819,  4  Wheaton,  518. 
Marshall,  Ch.  J. 

Eiuert  vs.  Missouri,  U.  S.  Sup.  Ct.  1894,  156  U.  S.  296,  Gray,  J. 

Georgia  vs.  Stanton,  U.  S.  Sup.  Ct.  1867,  6  Wallace,  50,  Nelson,  J. 

Gibbons  vs.  Ogden,  U.  S.  Sup.  Ct.  1824,  9  Wheaton,   1,  ^Marshall, 
Ch.  J. 

Gibbons  vs.  United  States,  U.  S.  Sup.  Ct.  1868,  8  Wallace,  269,  Mil- 
ler, J. 

Gillespie  vs.  Winberg,  N.  Y.  Ct.  Com.  Pleas,  1872,  4  Daly,  318,  Daly, 
Ch.  J. 

Gilman  vs.  Philadelphia,  U.  S.  Sup.  Ct.  1865,  3  Wallace,  713,  Swayxe  J. 

Grlswold  vs.  Atlantic  Bock  Co.,  N.  Y.  Sup.  Ct.  I8o5,  21  Baibour,  225, 
Strong,  J. 

Interstate  Commerce  Comm.   vs.   Brimson,    U.   S.   Sup.   Ct.   1894,  154 
U.  S.  447,  Harlan,  J. 

Kilbourn  vs.  Thompson,  U.  S.  Sup.  Ct.  1880,  103  U.  S.  168,  Miller,  J. 

Lane  vs.  Oregon,  U.  S.  Sup.  Ct.  1868,  7  Wallace,  71,  Chase,  Ch.  J. 

Livingstone  vs.  Moore,  U.  S.  Sup.  Ct.  1833,  7  Peters,  4G9,  Johnson,  J. 

Loan  Ass'n  vs.  Topeka,  IT.  S.  Sup.  Ct.  1874,  20  Wall.  655,  Miller,  J, 

McCalioch  vs.  Maryland,  U.  S.  Sup.  Ct.  1819,  4  Wheaton,  316,  Mar- 
shall, Ch.  J. 

McNeil,  Ex  parte,  U.  S.  Sup.  Ct.  1871,  13  Wallace,  236,  Swayne,  J. 

Martin  vs.  Waddell,  U.  S.  Sup.  Ct.  1842,  16  Peters,  367,  Taney,  Ch.  J. 

Maxwell  vs.  Dow,  U.  S.  Sup.  Ct.  1900,  176  U.  S.  581,  Peckham,  J. 

May  vs.  New  Orleans,  U.  S.  Sup.  Ct.  1900,  178  U.  S.  496,  Harlan,  J. 

Milligan,  Ex  parte,  U.  S.  Sup.  Ct.  1866,  4  Wallace,  2,  Davis,  J. 

Minor  vs.  Happtrsett  [Woman^s  Rights  Case),  U.  S.  Sup.  Ct.  1874,  21 
Wallace,  162,  Waite,  Ch.  J. 

Munn  vs.  Illinois,  U.  S.  Sup.  Ct.  1876,  94  U.  S.  113,  Waite,  Ch.  J. 

jSfew  Hampshire  vs.  Louisiana,  U.  S.  Sup.  Ct.  1883,  108  U.  S.  76,  Waite, 
Ch.  J. 


INSU1.AR  CASES  APPENDIX.  643 

New  Orleans  vs.  United  States,  U.  S.  Sap.  Ct.  1836,  10  Peters,  662, 
McLean,  J. 

New  Yo7'k  vs.  Miln  (Passenger  Case)  U.  S.  Sup.  Ct.  1837,  11  Peters, 
102,  Barbour,  J. 

O'Neill  vs.    Vermont,  U.  S.  Sup.  Ct.  1892,  144  U.  S.  323,  Blatch- 

PORD,   J. 

Penhullow  vs.  Boane,  U.  S.  Sup.  Ct.  1795,  3  Dallas,  54,  Blair,  Pater- 
son,  CUSHING,  J.T. 

Permoli  vs.  Municipality,  U.  S.  Sup.  Ct.  1845,  3  Howard,  589,  Cat- 
ron, J. 

Pervear  vs.  Commonwealth,  U.  S.  Sup.  Ct.  1866,  5  Wallace,  475,  Chase, 
Ch.  J. 

Prigg  vs.  Pennsylvania  [Fugitive  Slave  Law  Case),  U.  S.  Sup.  Ct.  1842, 
16  Peters,  539,  Story,  J. 

Reimblica  vs.  Sweers,  Sup.  Ct.  Penna.  1779,  1  Dallas,  45,  McKean, 
Ch.  J. 

Shanks  vs.  Dupont,  V.  S.  Sup.  Ct.  1830,  3  Peters,  242,  Story,  J. 

Siebold,  Ex  parte,  U.  S.  Sup.  Ct.  1879,  100  U.  S.  371,  Bradley,  J. 

Slaughterhouse  Cases,  U.  S.  Sup.  Ct.  1872,  16  Wallace,  36,  Miller,  J. 

Spies  vs.  Illinois  (Chicago  Anarchist  Case),  U.  S.  Sup.  Ct.  1887,  123  U. 
S.  131,  Waite,  Ch.  J. 

Tennessee  vs.  Davis,  U.  S.  Sup.  Ct.  1879,  100  U.  S.  257,  Strong,  J. 

Texas  vs.    White,  U.  S.  Sup.  Ct.  1868,  7  Wallace,  700,  Chase,  Ch.  J. 

United  States  vs.  Osborne,  U.  S.  Dist,  Ct.  Oregou,  1880,  6  Sawyer,  406, 
Deady,  J. 

United  States  vs.  Joint  Traffic  Ass'n,  U.  S.  Sup.  Ct.  1898,  171  U.  S. 
505,  Peckham,  J. 

United  States  vs.  Wong  Kim  Ark  (Chinese  Baby  Case),  U.  S.  Sup.  Ct. 
1898,  169  U.  S.  649,  Gray,  J. 

Vance  vs.  Vandercook  Co.,  U.  S.  Sup.  Ct.  1898, 170  U.  S.  438,  White,  J. 

Walker  vs.   Saumnet,  U.  S.  Sup.  Ct.  1875,  92  U.  S.  90,  Waite,  Ch.  J. 

Wood  vs.  Wood,  Sup.  Ct.  Arkansas,  1891,  54  Ark.  172,  Hemingway,  J. 

VII. 

Separate  Departments  of  the  Government  of  the  United  States, 
Executive,  Legislative  and  Judicial,  and  the  functions  of  each. 

Am,iable  Isabella,  The,  U.  S.  Sup.  Ct.  1821,  6  Wheaton,  1,  Story  J. 

Castro  vs.  DeUriarte,  U.  S.  Dist.  Ct.  S.  D.  N.  Y.  1883,  16  Fed.  Rep.  93, 
Brown,  J. 

Chae  Chan  Ping  vs.  United  States,  (Chinese  Exclusion  Case),  U.  S.  Sup. 
Ct.  1889,  130  U.  S.  581,  Field,  J. 

Chew  Heong  vs.  United  States,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  536, 
Harlan,  J. 

Chouteau  vs.  Eckhart,  U.  S.  Sup.  Ct.  1844,  2  Howard,  344,  Catron,  J. 

Clinton  Bridge,  The,  U.  S.  Cir,  Ct.  Iowa,  1867,  1  Woolworth,  150,  Mil- 
ler, J. 

Coffee  vs.  Groover,  U.  S.  Sup.  Ct.  1887,  123  U.  S.  1,  Bradley,  J. 

In  re  Cooper,  (Behring  Sea  Cases),  U.  S.  Sup.  Ct.  1891,  138  U.  S.  404; 
and  1892,  143  U.  S.  472,  Fuller,  Ch.  J. 


544  TKEATY-MAKESTG  POWER  OF  THE  U.  S. 

Dodge  vs.  Wuolscy,  U.  S.  Sup.  Ct.  1855,  18  Howard,  031,  Wayne,  J. 
Fitld  vs.  Clark,  U.  S.  Sup.  Ct.  1S'J2,  143  U.  S.  G49,  Haklan,  J. 
Foater  vs.  NeiLson,  U.  S.  Sup.  Ct.  1»29,  2  Peters,  253,  Maksuall,  Ch.  J. 
Frelin(jlni!/fien  vs.  Key,  U.  S.  Sup.  Ct.  1884,  110  U.  S.  G3,  Waitk,  Ch.  J. 
Garcia,  vs.  Lee,  U.  S.  Sup.  Ct.  1838,  12  Peters,  511,  Tanky,  CMi.  J. 
Georyia  vs.  Stanton,  U.  S.  Sup.  Ct.  18G7,  6  Wallace,  50,  Nelson,  J. 
Great  W'entern  Ins.  Co.  vs.  United  States,  U.  S.  Sup.  Ct.  1884,  112  U.  S. 
193,  MlLLEK,  J. 

Head  Money  Cases,  U.  S.  Sup.  Ct.  1884,  112  U.  8.  580,  Miller,  J. 

Holmes  vs.  Jennison,  U.  S.  Sup.  Ct.  1840,  14  Peters,  540,  Thompson,  J. 

Jones  vs.  United  States,  U.  S.  Sup.  Ct.  1890,  137  U.  S.  202,  Gkay,  J. 

Kansas  Indians,  The,  U.  S.  Sup.  Ct.  18(56,  5  Wallace,  737,  Davis,  J. 

Kennett  vs.   Chambers,  U.  S.  Sup.  Ct.   1852,   14  Howard,  38,  Taney, 
Ch.  J. 

Luther  vs.  Borden,  U.  S.  Sup.  Ct.  1849,  7  Howard,  1,  Taney,  Ch.  J, 

McPherson  vs.  Blacker,  U.  S.  Sup.  Ct.  1892,  146  U.  S.  1,  Fulleb,  Ch.  J. 

Marbury  vs.  Madison,  U.  S.  Sup.  Ct.  1803,  1  Cranch,  137,  Marshall, 
Ch.  J. 

Miller  vs.    United    States,   U.  S.    Sup.    Ct.    1870,    11    Wallace,   268, 
Strong,  J. 

Mormon  Church  vs.    United  States,  U.  S.  Sup.  Ct.  1890,  136  U.  S.  1, 
Bradley,  J. 

Morrill  vs.  Jones,  U.  S.  Sup.  Ct.  1882,  106  U.  S.  466,  Waite,  Ch.  J. 

Munn  vs.  Illinois,  U.  S.  Sup.  Ct.  1876,  94  U.  S.  113,  Waite,  Ch.  J. 

Neeley  vs.  Henkel,  U.  S.  Sup.  Ct.  1901,  180  U.  S.  109,  Harlan,  J. 

Phillips  vs.  Payne,  U.  S.  Sup.  Ct.  1875,  92  U.  S.  130,  Swayne,  J. 

Pollard's  Heirs  vs.  Kibbe,  U.  S.  Sup.  Ct.  1840,  14  Peters,  353,  Thomp- 
son, J. 

Pollock  vs.  Farmers'  L.  &  T.  Co.,  (Income  Tax  Case),  U.  S.  Sup.  Ct. 
1895,  157  U.  S.  429,  Fuller,  Ch.  J. 

Rhode  Island  vs.  Massachusetts,  U.  S.  Sup.  Ct.  1838,  12  Peters,  657, 
Baldwin,  J. 

Rose  vs.  Himeley,  U.  S.  Sup.  Ct.  1808,  4  Cranch,  241.,  Marshall, 
Ch.  J. 

Taylor  vs.  Morton,  U.  S.  Cir.  Ct.  Mass.  1855,  2  Curtis,  454,  Curtis,  J., 
(aff'd  U.  S.  Sup.  Ct.  1862,  2  Black,  481,  Clifford,  J.). 

United  States  vs.  Holliday,  U.  S.  Sup.  Ct.  1865,  3  Wallace,  407,  Mil- 
ler, J. 

United  Statesvs.  Johnson,  U.  S.  Sup.  Ct.  1888, 124 U.  S.  236,  Harlan,  J. 

United  States  vs.  Palmer,  U.  S.  Sup.  Ct.  1818,  3  Wheaton,  610,  Mar- 
shall, Ch.  J. 

United  Statesvs.  Rauscher,  U.  S.  Sup.  Ct.  1886, 119 U.  S.  407,  Miller,  J. 

United  States  vs.  Reynes,  U.  S.  Sup.  Ct.  1850,  9  Howard,  127,  (cited  as 
50  U.  S.)  Daniel,  J. 

United  States  vs.  Yorba,  U.  S.  Sup.  Ct.  1863,  1  Wallace.  412,  Field,  J. 

Whitney  vs.  Robertson,  U.  S.  Sup.  Ct.  1888,  124  U.  S.  190,  Field,  J. 

Whiton  vs.  Albany  County  Ins.  Co.,  Sup.  Ct.  Mass.  1871,  109  Mass.  24, 
Gray,  J. 


INSULAR  CASES  APPENDIX.  545 

Williams  vs.  Suffolk  Ins.  Co.,  U.  S.  Sup.  Ct.  1839,  13  Peters,  415,  Mo- 
Lean,  J. 

VIII. 

Powers  of  the  Judicial  Department  of  the  United  States  Gov- 
ernment, Including  those  of  Territorial  Courts. 
American  Ins.  Co.  vs.   Canter  {Florida  Case),  U.  S.  Sup.  Ct.  1828,  1 
Peters,  511,  Marshall,  Ch.  J. 

American  Publishiwj  Co.  vs.   Fisher,  U.  S.  Sup.  Ct.  1897,  166  U.  S. 
464,  Brewer,  J. 

Amy  Warwick,  The,  U.  S.  Dist.  Ct.  Mass.  1862,  2  Sprague,  123,  150, 
Sprague,  J. 

Castro  vs.  DeUriarte,  U.  S.  Dist.  Ct.  S.  D.  N.  Y.  1883,  16  Fed.  Rep.  93, 
Brown,  J. 

Clawson  vs.  United  States,  U.  S.  Sup.  Ct.  1885,  114  U.  S.  477,  Blatch- 
ford,  J. 

Clinton  vs.  Enylebrecht,  U.  S.  Sup.  Ct.  1871,  13  Wallace,  434,  Chase, 
Ch.  J. 

Charkieh,  The,  High  Ct.  of  Adm.  1873,  4  L.  R.  A.  &  E.  59,  aud  Cob- 
bett's  Cas.  Int.  Law,  p.  9,  Sir  Robert  Phillimoke. 

Cridkshunk  vs.  Bidmell,  U.  S.  Sup.  Ct.  1900,  176  U.  S.  73,  Fuller,  Ch.  J. 

Debs,  In  re,  U.  S.  Sup.  Ct.  189.5,  158  U.  S.  564,  Brewer,  J. 

Genessee  Chief,  The,  U.  S.  Sup.  Ct.  1851,  12  Howard,  443,  Taney,  Ch.  J. 

Godson  vs.  United  States,  Sup.  Ct.  Oklahama,  1898,  Burford,  Ch.  J. 

Good  vs.  Martin,  U.  S.  Sup.  Ct.  1877,  95  U.  S.  90,  Clifford,  .J. 

Grapeshot,  The,  U.  S.  Sup.  Ct.  1869,  9  Wallace,  129,  Chase,  Ch.  J. 

Jecker  vs.  Montgomery,  U.  S.  Sup.  Ct.  1851,  13  Howard,  498,  Taney, 
Ch.  J. 

Lascelles  vs.  Bidwell,  U.  S.  Cir.  Ct.  S.  D.  N.  Y.  1900,  102  Fed.  Rep. 
1004,  Lacombe,  J. 

Leitensdorfer  vs.    Webb,  U.  S.  Sup.  Ct.  1857,  20  Howard,  176,  Dan- 
iel, J. 

Lyons  vs.  Woods,  U.  S.  Sup.  Ct.  1894,  153  U.  S.  649,  Fuller,  Ch.  J. 

McAllister  vs.  United  States,  U.  S.  Sup.  Ct.  1891,  141  U.  S.  174,  Har- 
lan, J. 

Marbury  vs.  Madison,  U.  S.  Sup.  Ct.  1803,  1  Cranch,  137,  Marshall, 
Ch.  J. 

Milllrjan,  Ex  parte,  U.  S.  Sup.  Ct.  1866,  4  Wallace,  2,  Davis,  J. 

Missouri  vs.  Lewis,  U.  S.  Sup.  Ct.  1879,  101  U.  S.  22,  Bradley,  J. 

Neaijle,  In  re,  U.  S.  Sup.  Ct.  1890,  135  U.  S.  1,  Miller,  J. 

Ortiz,  Ex  parte,  U.  S.   Cir.  Ct.   Minn.  1900,  100  Fed.  Rep.  955,  Locii- 
kan,  J. 

Postmaster  General  vs.   Early,  U.  S.  Sup.  Ct.  1827,  12  Wheaton,  136, 
Marshall,  Ch.  J. 

Ross  In  re,  U.  S.  Sup.  Ct.  1801,  140  U.  S.  453,  Field,  J. 

Thompson  vs.  Utah,  U.  S.  Sup.  Ct.  1S98,  170  U.  S.  343,  Harlan,  J. 

United  States  vs.  Hill,  U.  S.  Cir.  Ct.  Virginia,  1  Brockeubrough,  156, 
Marshall,  Ch.  J. 
35 


546  TREATV-.MAKlMCi  I'UWKU  Ul*"  THE  U.  S. 

United  States,  Lyon  et  id.  vs.  Iluckabee,  U.  S.  Sup.  Ct.  1872,  1(5  Wall. 
414,  Cliffoku,  J. 

Walker  vs.  SctKvinet,  U.  S.  Sup.  Ct.  1875,  92  U.  S.  90,  Waite,  Ch.  J. 

Willnirn  vs.  State,  Sup.  Ct.  Arkansas,  1860,  21  Ark.  198,  Campton,  J.; 
1895,  60  Ark.  141,  Wood,  J. 

IX. 
Construction  of  Uniformity  and  Commerce  Clauses  of  the  Con- 
stitution OF  the  United  States;  Federal  and  State  Powers  of 
Taxation  and  Control  of  Commerce. 

Almy  vs.  California,  U.  S.  Sup.  Ct.  1860,  24  Howard,  169,  Taney, 
Cb.  J. 

Asher  vs.  Texas,  U.  S.  Sup.  Ct.  1888,  128  U.  S.  129,  Bradley,  J. 

Brennan  vs.  Titusville,  U.  S.  Sup.  Ct.  1894,  153  U.  S.  289,  Breaver,  J. 

Briscoe  vs.  Bank,  U.  S.  Sup.  Ct.  1837,  11  Peters,  257,  McLean,  J. 

Brown  vs.  Maryland,  U.  S.  Sup.  Ct.  1827,  12  Wheaton,  419,  Marshall, 
Ch.  J. 

Clinton  Bridye,  The,  U.  S.  Cir.  Ct.  Iowa,  1807,  1  Woolworth,  150,  Mil- 
ler, J. 

Cohens  vs.  Virginia,  U.  S.  Sup.  Ct.  1821,  6  Wlieaton,  264,  Marshall, 
Ch.  J. 

Cooley  vs.  Board  of  Port  Wardetis,  U.  S.  Sup.  Ct.  1851,  12  Howard, 
299,  Curtis,  J. 

Crandall  vs.  Nevada,  U.  S.  Sup.  Ct.  1867,  6  Wallace  35,  Miller,  J. 

Crutcher  vs.  Kentucky,  U.  S.  Sup.  Ct.  1891,  141  U.  S.  47,  Bradley,  J. 

Fairbank  vs.  United  States,  U.  S.  Sup.  Ct.  1901,  181  U.  S.  283. 
Brown,  J. 

Field  vs.  Clark,  U.  S.  Sup.  Ct.  1892,  143  U.  S.  649,  Harlan,  J. 

Gibbons  vs.  Oyden.  U.  S.  Sup.  Ct.  1824,  9  Wheaton,  1,  Marshall, 
Ch.  .T. 

Gibbons  vs.  United  States,  U.  S.  Sup.  Ct.  1868,  8  Wallace,  269,  Mil- 
ler, J. 

Head  Money  Cases,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  580,  Blatchford,  J. 

Kennard  vs.  Louisiana,  U.  S.  Sup.  Ct.  1875,  92  U.  S.  480,  Waite, 
Ch.  J. 

Knowlton  vs.  Moore  (  War  Revenue  Inheritance  Tax  Case),  U.  S.  Sup. 
Ct.  1900,  178  U.  S.  41,  White,  J. 

License  Tax  Cases,  U.  S.  Sup.  Ct.  1866,  5  Wallace,  462,  Chase,  Ch.  J. 

Loughborough  vs.  Blake,  U.  S.  Sup.  Ct.  1820,  5  Wheaton,  317,  Mar- 
shall, Ch.  J. 

McCall  vs.  California,  U.  S.   Sup.  Ct.  1890,  136  U.  S.  104,  Lamar,  J. 

May  vs.  New  Orleans,  U.  S.  Sup.  Ct.  1900,  178  U.  S.  496,  Harlan,  J. 

Monongahela  Nav.  Co.  vs.  United  States,  U.  S.  Sup.  Ct.  1893,  148  U.  S. 
312,  Brewer,  J. 

Munn  vs.  Illinois,  U.  S.  Sup.  Ct.  1876,  94  U.  S.  113,  Waite,  Ch.  J. 

New  York  vs.  Miln  {Passenger  Cases),  U.  S.  Sup.  Ct.  1837,  11  Peters, 
182,  Barbour,  J. 

Penna.  vs.  Wheeling  Bridge  Co.,  U.  S.  Sup.  Ct.  1855,  18  Howard,  421, 
Nelson,  J. 


INSULAR  CASES  APPENDIX.  547 

Percear  vs.  Commonwealth,  U.  S.  Sup.  Ct.  1866,  5  Wallace,  475, 
Chase,  Ch.  J. 

Pittsburg  and  Southern  Coal  Co.  vs.  Bates,  U.  S.  Sup.  Ct.  1895,  156 
U.  S.  577,  Field,  J. 

Pollock  vs.  Farmers''  L.  &  T.  Co.  (Income  Tax  Case),  U.  S.  Sup.  Ct. 
1895,  157  U.  S.  429,  Fullek,  Ch.  J. 

Bhodes  vs.  loioa,  U.  S.  Sup.  Ct.  1898,  170  U.  S.  412,  White,  J. 

Rohbins  vs.  Shelbij  Taxing  District,  U.  S.  Sup.  Ct.  1897,  120  U.  S.  489, 
Bradley,  J. 

Sherman  vs.  United  States,  U.  S.  Sup.  Ct.  1900,  178  U.  S.  150,  Shi- 

KAS,  J. 

Stoulenbergh  vs.  Hennick,  U.  S.  Sup.  Ct.  1889,  129  U.  S.  141,  Fuller, 
Ch.  J. 

Talbott  vs.  Silver  Bow  Co.,  U.  S.  Sup.  Ct.  1891,  139  U.  S.  438, 
Brewer,  J. 

Thomas  vs.  Gay,  U.  S.  Sup.  Ct.  1808,  169  U.  S.  264,  Shiras,  J. 

United  States  vs.  Fisher,  U.  S.  Sup.  Ct.  1805,  2  Cranch,  358,  Mar- 
shall, Ch.  J. 

United  States  vs.  Joint  Traffic  Ass'n,  U.  S.  Sup.  Ct.  1898,  171  U.  S. 
505,  Peckham,  J. 

Vance  vs.  Vandercook  Co.,  U.  S.  Sup.  Ct.  1898,  170  U.  S.  438,  White,  J. 

X. 

Construction  of  Tariff  and  Other  Laws  of  the  United  States. 
(See  also  Treaties  and  Statutes.) 

Adams  vs.  Bancroft,  U.  S.  Cir.  Ct.  Mass.  1838,  3  Sumner,  384, 
Story,  J. 

American  Net  and  Twine  Co.  vs.  Worthington,  U.  S.  Sup.  Ct.  1891,  141 
U.  S.  468,  Brown,  J. 

Asher  vs.  Texas,  U.  S.  Sup.  Ct.  1888,  128  U.  S.  129,  Bradley,  J. 

Barney  vs.  Baltimore  City,  U.  S.  Sup.  Ct.  1867,  6  Wallace,  280,  Mil- 
ler, J. 

Conqueror,  The  (Vanderbilt  Yacht  Case),  U.  S.  Sup.  Ct.  1896,  166  U.  S. 
110,  Brown,  J. 

Cruikshank  vs.  Bidwell,  U.  S.  Sup.  Ct.  1900,  176  U.  S.  73,  Ful- 
ler, Ch.  J. 

Good  vs.  Martin,  U.  S.  Sup.  Ct.  1877,  95  U.  S.  90,  Clifford,  J. 

Hartranft  vs.  Wiegman,  U.  S.  Sup.  Ct.  1887,  121  U.  S.  609,  Blatch- 

FORD,  J. 

Lascelles  vs.  Bidwell,  U.  S.  Cir.  Ct.  S.  D.  N.  Y.  1900,  102  Fed.  Rep. 
1004,  Lacomre,  J. 

Phila.  &  Reading  R.  R.  Co.  vs.  Kenney,  U.  S.  Cir.  Ct.  Penna.  1873,  18 
Int.  Rev.  Rec.  92,  McKenna,  ,J. 

Powers  vs.  Barney,  II.  S.  Cir.  Ct.  S.  D.  K  Y.  1863,  5  Blatchford,  202, 
Nelson,  J. 

United  States  vs.  Dickson,  U.  S.  Sup.  Ct.  1841,  15  Pet.  141,  Story,  J. 

United  States  vs.  Ishain.  U.  S.  Sup.  Ct.  1873,  17  Wallace,  496,  Hunt,  J. 

United  States  vs.  Rice,  U.  S.  Sup.  Ct.  1819,  4  Wheat.  246,  Story,  J. 

United  States  vs.  Ullman,  U.  S.  Dt.  Ct.  N.  Y.  1871,  4  Ben.  547,  Blatch- 
ford, J. 


548  TREATY-MAKING  TOWER  OF  THE  U.  S. 

United  Statesvs.  Union  Pacific  By.  Co.,  U.  S.  Sup.  Ct.  1875,  91  U.  S. 
72,  Davis,  J. 

United  States  va.  W'i'jylesworth,  U.  S.  Cir.  Ct.  Mass.  1842,  2  Story,  369, 
Stoky,  J. 

United  States  vs.  Weed,  U.  S.  Sup.  Ct.  18(56,  5  Wallace,  62,  Miller,  J. 

Woodruff  vs.  Parhain,  U.  S.  Sup.  Ct.  1868,  8  Wallace,  123,  Miller,  J. 

XI. 

.Judicial  Definitions  of  Terms  used  in  the  Constitution  of  the 
United  States,  and  in  Tariff  and  Other  Laws. 

Adventure  and  Cargo,  T/ie,  U.  S.  Cir.  Ct.  Virginia,  1812,  1  Brocken- 
brough,  235,  Marshall,  Ch.  J. 

Alameda  vs.  Neal,  U.  S.  Cir.  Ct.  Cal.  1887,  32  Fed.  Rep.  331,  Field,  J. 

Asher  vs.  Texas,  U.  S.  Sup.  Ct.  1888,  128  U.  S.  129,  Bradley,  J. 

Brown  vs.  Houston,  U.  S.  Sup.  Ct.  1885,  114  U.  S.  622,  Bradley,  J. 

Brown  vs.  Maryland,  U.  S.  Sup.  Ct.  1827,  12  Wheaton,  419,  Mar- 
shall, Ch.  J. 

Cherokee  Nation  vs.  Georgia,  U.  S.  Sup.  Ct.  1831,  5  Peters,  1,  Mar- 
shall, Ch.  J. 

Coe  vs.  Errol,  U.  S.  Sup.  Ct.  1886,  116  U.  S.  517,  Bradley,  J. 

Cohens  vs.  Virginia,  U.  S.  Sup.  Ct.  1821,  6  Wheaton,  264,  Mar- 
shall, Ch.  J. 

Conqueror,  The  ( Vanderbilt  Yacht  Case),  U.  S.  Sup.  Ct.  1896,  166  U.  S. 
110.  Brown,  J. 

Davidson  vs.  McKibben,  Ct.  of  Com.  Pleas,  2  Geo.  IV.  1821,  3  Broderip 
&  Bingham,  112,  Dallas,  Cli.  J. 

Dixon  \s.  United  States,JJ.  S.Cir.  Ct.  Virginia,  1811,  1  Brockenbrough, 
177,  Marshall,  Ch.  J. 

Eliza  and  Cargo,  The,  U.  S.  Cir.  Ct.  Mass.  1813,  2  Gallison,  4,  Story,  J. 

Fairbank  vs.  United  States,  U.  S.  Sup.  Ct.  1901,  181  U.  S.  283,  Brew- 
er, J. 

Fleming  vs.  Page  { Tampico  Duty  Case),  U.  S.  Sup.  Ct.  1850,  9  Howard, 
603,  Taney,  Ch.  J. 

Hornbuckle  vs.  Toombs,  U.  S.  Sup.  Ct.  1873,  18  Wallace,  648,  Brad- 
ley, J. 

King  vs.  Parks,  N.  Y.  Sup.  Ct.  1822, 19  Johnson,  375,  Spencer,  Ch.  J. 

Lark  and  Cargo,  The,  U.  S.  Cir.  Ct.  Mass.  1812,  1  Gallison,  .55,  Story,  J. 

Loughborough  vs.  Blake,  U.  S.  Sup.  Ct.  1820,  5  Wheaton,  317,  Mar- 
shall, Ch.  J. 

Marbury  vs.  Madison,  U.  S.  Sup.  Ct.  1803,  1  Cranch,  137,  Marshall, 
Ch.  J. 

Murray  vs.  Clark,  N.  Y.  Com.  Pleas  1873,  4  Daly  468,  Daly,  Ch.  J. 

Ravesies  vs.  United  States,  V.  S.  Cir.  Ct.  Alabama,  1889,  37  Fed.  Rep. 
447,  Pardee,  J. 

Rhodes  vs.  Iowa,  U.  S.  Sup.  Ct.  1898,  170  U.  S.  412,  White,  J. 

Sally  and  Cargo,  The,  U.  S.  Cir.  Ct.  Mass.  1812,  1  Galli.son,  58,  Story,  J. 

Spragup.  vs.  Thompson,  U.  S.  Sup.  Ct.  1886,  118  U.  S.  90,  Matthews,  J. 

Stairs  vs.  Peaslee,  U.  S.  Sup.  Ct.  1855, 18  Howard,  521,  Taney,  Ch.  J. 


INSULAR  CASES  APPENDIX.  549 

Steamboat  Co.  vs.  Livingston,  Ct.  Errors  N.  T.  1825,  3  Cowan,  713, 
Sandfokd,  Chan. 

Sturges  vs.  Crowninshield,  U.  S.  Sup.  Ct.  1819,  4  Wheaton,  122,  Mar- 
shall, Ch.  J. 

Tuber  vs.  United  States,  U.  S.  Cir,  Ct,  Mass.  1839,  1  Story  1,  Story,  J. 

Tarpin  vs.  Banjess,  U.  S.  Sup.  Ct.  1886,  117  U.  S.  504,  Bradley,  J, 

United  States  vs.  Hayward,  U.  S.  Cir.  Ct.  Mass.  1815,  2  Gallison,  485, 
Story,  J. 

United  States  vs.  Patten,  U.  S.  Ct.  Maine,  1  Holmes,  421,  Shepley,  J. 

Veazie  vs.  Moor,  U.  S.  Sup.  Ct.  1852,  14  Howard.  568,  Daniel,  J. 

Woodruff  vs.  Parham,  U.  S.  Sup.  Ct.  1868,  8  Wallace,  123,  Miller,  J. 

XII. 

Application  of  the  First  Ten  Amendments  (Bill  op  Rights)  of 

THE  Constitution  OF  the  United  States;  Their  Effect  on  the 

States  and  on  Federal  Laws. 

Brown  vs.  New  Jersey,  U.  S.  Sup.  Ct,  1899,  175  U.  S.  172,  Brewer,  J. 

Cook  vs.  United  States,  U.  S.  Sup,  Ct.  1891,  138  U.  S.  157,  Harlan,  J. 

Mitchell  vs.  Harmony,  U,  S,  Sup,  Ct.  1851,  13  Howard,  115,  Taney, 
Ch.  J. 

Monongahela  Nav.  Co.  vs.  United  States,  U,  S,  Sup.  Ct.  1893,  148  U.  S. 
312,  Brewer,  J. 

O'Neill  \s.  Vermont,  U,  S,  Sup,  Ct,   1892,   144  U,  S.  323,  Blatch- 

FORD,   J. 

Spies  vs.  Illinois  (Chicago  AnarcJiist  Case),  U.  S.  Sup.  Ct,  1887,  123 
U.  S.  131,  Waite,  Ch,  J. 

United  States  vs.  Cruikshank,  U.  S,  Sup.  Ct.  1875,  92  U.  S,  542, 
Waite,  Ch,  J. 

XIII. 

Fundamental  Limitations  of  Government,  and  Their  Effect 
UPON  THE  Congressional  Government  of  Territory  of  the 
United  States. 

American  Publishing  Co.  vs.  Fisher  (  Utah  Jury  Case),  U.  S.  Sup.  Ct. 
1897,  166  U.  S.  464,  Brewer,  J. 

Bank  of  Columbia  vs.  Okely,  U.  S.  Sup.  Ct.  1819,  4  Wheaton,  235, 
Johnson,  .1. 

Briscoe  vs.  Bank,  U.  S.  Sup.  Ct.  1837,  11  Peters,  257,  McLean,  J. 

Chicago,  etc.,  Ry.  Co.  vs.  Tompkins,  U.  S.  Sup.  Ct.  1900,  176  U.  S.  167, 
Brewer,  .J. 

Cummings  vs.  Missouri,  U.  S.  Sup.  Ct.  1866,  4  Wallace,  277,  Field,  J. 

Dartmouth  College  vs.  Woodward,  U.  S.  Sup.  Ct.  1819,  4  Wheaton,  518, 
Marshall,  Ch.  J 

Kemmler,  In  re,  U.  S.  Sup,  Ct.  1890,  130  U.  S.  436,  Fuller,  Ch.  .1. 

Legal  Tender  Cases,  U.  S.  Sup.  Ct.  1869,  8  Wallace,  603,  Chase,  Ch.  J, ; 
1870,  12  Wallace,  467,  Strong,  J.;  1884,  110  U.  S.  421,  Gray,  J. 

Loan  Ass'n  vs.  Topeka,  U.  S.  Sup.  Ct.  1874,  20  Wallace,  655,  Mil- 
ler, J. 

Maxwell  vs.  Bow,  U.  S,  Sup.  Ct.  1900,  176  U,  S.  581,  Peckham,  J. 


550  TREATY-MAKING  POWEK  OF  THE  U.  S. 

Missouri  vs.  Leivis,  U.  S.  Sup.  Ct.  1870,  101  U.  S.  22,  Bijadley,  J. 

Mormon  Church  vs.  United  States,  U.  S.  Sup.  Ct.  1890,  136  U.  S.  1, 
Bradley,  J. 

Murphy  vs.  Eamsei/,  U.  S.  Sup.  Ct.  1885,  114  U.  S.  15,  Matthews,  J. 

O'Ntill  vs.  Vermont,  U.  S.  Sup.  Ct.  1892,  144  U.  S.  o23,  Blatch- 
FORD.   J. 

Slaughter  Uouse  Cases,  U.  S.  Sup.  Ct.  1872,  16  Wallace,  30,  Miller,  J. 

Thompson  vs.  Utah,  U.  S.  Sup.  Ct.  1898,  170  U.  S.  343,  IIaklax,  J. 

United  States  vs.  Bill,  U.  S.  Cir.  Ct.  1809,  Virginia,  1  Biockeubrough, 
156,  Marshall,  Cb.  J. 

Weimer  \s.  Bunbunj,  Sup.  Ct.  Michigan,  1874,  30  Mich.  201,  Cooley,  J. 

XIV. 

Suability  of  the  United  States,  and  of  States,  by  Citizens 
AND  BY  Aliens. 

Carlisle  vs.  United  States,  U.  S.  Sup.  Ct.  1872, 16  Wallace,  147,  Field,  J. 

Cherokee  Nation  vs.  Georgia,  V.  S.  Sup.  Ct.  1831,  5  Peters,  1,  Mar- 
shall, Ch.  J. 

Chisholm  vs.  Georgia,  U.  S.  Sup.  Ct.  1793,  2  Dallas,  419,  Jay,  Ch.  J., 
Ibedell,  Blair,  Wilson,  Cushing,  JJ. 

Ficheras  Case,  U.  S.  Ct.  of  Claims,  1873,  9  Ct.  of  Claims,  254,  Xott,  J. 

Gibbons  vs.  United  States,  U.  S.  Sup.  Ct.  1868,  8  Wallace,  269,  Mil- 
ler, J. 

nm  vs.  United  States.  U.  S.  Sup.  Ct.  1893,  149  U.  S.  593,  Gray,  J. 

New  Hampshire  vs.  Louisiana,  U.  S.  Sup.  Ct.  1883,  108  U.  S.  76,  Waite. 
Ch.  J. 

Scott  vs.  Jones,  U.  S.  Sup.  Ct.  1847,  5  Howard,  343,  Woodbury,  J. 

United  Stafesva.  O'Keefe,  U.  S.  Sup.  Ct.  1870, 11  Wallace,  178,  Davis,  J. 

Worcester  vs.  Georgia,  U.  S.  Sup.  Ct.  1832,  6  Peters,  515,  Marshall, 
Ch.  J. 

XV. 

Military  Powers  and  Government;  Military  Occupancy;  Prize 
AND  Conquest. 

Alexander  vs.  Roxdet,  U.  S.  Sup.  Ct.  1871,  13  Wallace,  386,  Davis.  J. 

American  Ins.  Co.  vs.  Canter  (Florida  Case),  U.  S.  Sup.  Ct.  1828,  1 
Peters,  511,  Marshall,  Ch,  J. 

Amiable  Isabella,  The,  U.  S.  Sup.  Ct.  1821,  6  Wheaton,  1,  Story,  J. 

Amy  Warwick,  The,  U.  S.  Dist.  Ct.  Mass.  1862,  2  Sprague,  123,  150, 
Sprague,  .1. 

Blankard  vs.  Galdy,  King  &  Queen's  Bench,  5  Wm.  ct  Mary,  4  Mod. 
222,  Per  Curiam. 

Calvin's  Case,  Ct.  Exchequer  Chamber,  6  James  I.,  4  Coke.  1. 

Campbell  vs.  Hall,  King's  Bench,  15  Geo.  III.  Cowper,  204.  Lord 
Mansfield. 

Coleman  vs.  Tennessee,  U.  S.  Sup.  Ct.  1878,  97  IT.  S.  509,  Field,  J. 

Cro.ss  vs.  Harrison  (San  Francisco  Duty  Case),  U.  S.  Sup.  Ct.  1853.  Ki 
Howard,  164.  Wayne,  J. 

Dow  vs.  Johnson,  U.  S.  Sup.  Ct.  1879,  100  U.  S.  158,  Field,  J. 


iNSltLAK  CASES  APPENDIX.  551 

Elphinstone  vs.  Bedreechund,  Privy  Council  1830,  1  Knapp's  P.  C.  Rep. 
316,  Lord  Tenterdp:n. 

Exchange  (Schooner]  vs.  McFudden,  U.  S.  Sup.  Ct.  1812,  7  Crancb, 
116,  Marshall,  Ch.  J. 

Fleming  vs.  Page  ( Tami)ico  Duly  Case),  U.  S.  Sup.  Ct.  1850,  9  Howard, 
603,  Taney,  Cb.  J. 

Georgia  vs.  Stanton,  XJ.  S.  Sup.  Ct.  1867,  6  Wallace,  50,  Nelson,  J, 

Grapeshot,  The,  U.  S.  Sup.  Ct.  1869,  9  Wallace,  129,  Chase,  Cb.  J. 

Hamilton  vs.  Dillin,  U.  S.  Sup.  Ct.  1874,  21  Wallace,  73,  Bradley,  J. 

Jecker  vs.  Montgomery,  U.  S.  Sup.  Ct.  1851,  13  Howard,  498, 
Taney,  Cb.  J. 

Legal  Tender  Cases,  U.  S.  Sup.  Ct.  1869,  8  Wallace,  603,  Chase,  Cb.  J. ; 
1870,  12  Wallace,  457,  Strong,  J.;  1884,  110  U.  S.  421,  Gray,  J. 

Leltensdorfer  vs.  Webb,  U.  S.  Sup.  Ct.  1857,  20  Howard,  176,  Daniel,  J. 

Liverpool  Hero,  The,  U.  S.  Cii-.  Ct.  Mass.  1814,  2  Gallisou,  184,  Stoky,  J. 

Luther  vs.  Borden,  U.  S.  Sup.  Ct.  1849,  7  Howard,  1,  Taney,  Cb.  J. 

Mechanics'  Bank  vs.  Union  Bank,  U.  S.  Sup.  Ct.  1874,  22  Wallace,  276, 
Strong,  J. 

Milligan,  Ex  parte,  U.  S.  Sup.  Ct.  1866,  4  Wallace,  2,  Davis,  J. 

Mitchell  vs.  Harmony,  U.  S.  Sup.  Ct.  1851, 13  Howard,  115,  Taney,  Cb.  J. 

Mostyn  vs.  Fabrigas,  King's  Bencb,  1774,  Cowper,  180,  Lord  Mans- 
field, 

Neely  vs.  Henkel,  U.  S.  Sup.  Ct.  1901,  180  U.  S.  109,  Harlan,  J. 

New  Orleans  vs.  Steamship  Co.,  U.  S.  Sup.  Ct.   1874,  20  Wallace,  387, 

SWAYNE,  J. 

Ortiz,  Ex  parte,  U.  S.  Cir.  Ct.  Minnesota,  1900,  100  Fed.  Rep.  955, 
Lochran,  J. 

Paquette  Habana,  The,  U.  S.  Sup.  Ct.  1900,  175  U.  S.  677,  Gray,  J. 

Pizarro,  The,  U.  S.  Sup.  Ct.  1817,  2  Wbeaton,  227,  Story,  J. 

Raymond  vs.  Thomas,  U.  S.  Sup.  Ct.  1875,  91  LT.  S.  712,  Swayne,  J. 

Rose  vs.  Himeley,  U.  S.  Sup.  Ct.  1808,  4  Crancb,  241,  Marshall,  Cb.  J. 

Siebold,  Ex  parte,  U.  S.  Sup.  Ct.  1897,  100  U.  S.  371,  Bradley,  J. 

Stearns  vs.  United  States,  U.  S.  Sup.  Ct.  1867,  6  Wallace,  589,  Swayne,  J. 

Tennessee  vs.  Davis,  U.  S.  Sup.  Ct.  1879,  100  U.  S.  257,  Strong,  J. 

Texas  vs.  White,  U.  S.  Sup.  Ct.  1868,  7  Wallace  700,  Chase,  Cb,  J. 

Thirty  Hogsheads,  of  Sugar  vs.  Boyle,  U.  S.  Sup.  Ct.  1815,  9  Crancb, 
191,  Marshall,  Cb.  J. 

United  States  vs.  Castillero,  U.  S.  Sup.  Ct.  1802,  2  Black,  1,  Clifford,  J. 

United  States,  Lyon  et  al.,  vs.  Huckabee,  U.  S.  Sup.  Ct.  1872,  16  Wall. 
414,  Clifford,  .J. 

United  States  vs.  Repentigny,  U.  S.  Sup.  Ct.  1866,  5  Wallace,  211, 
Nelson,  J. 

United  States  vs.  Rice  (The  Castine  Case),  U.  S.  Sup.  Ct.  1819,  4 
Wbeaton,  246,  Story,  J, 

Vallandlgham,  Ex  parte,  U.  S.  Cir.  Ct.  Obio,  1863,  Fed.  Cas.  16,81(); 
(pampblet  Rickey  &  Carroll,  Cincinnati.)  Leavitt,  .T. 

Williams  vs.  Suffolk  Ins.  Co.,  U.  S.  Sup.  Ct.  1839,  13  Peters,  415,  Mc- 
Lean, J. 


\ 


OD'l  TREATY-MAKING  POWER  OF  THE  U.  S. 

XVI. 

National  Unity  and  the  CoNTiioi,  of  Forkign  Rklations  of  the 
United  States  by  the  Central  Government. 

Chae  Chan  Piny  vs.  United  Slates,  U.  S.  Sup.  Ct.  1889,  130  U.  S.  581, 
Field,  J. 

Chew  Ileong  vs.  United  States,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  53(5,  Har- 
lan, J. 

Cooper,  In  re  {Beriwi  Sea  Cases),  U.  S.  Sup.  Ct.  1891,  138  U.  S.  404, 
and  1892,  143  U.  S.  472,  Fuller,  Ch.  J. 

Ekiu,  Nishimura  vs.  United  States,  U.  S.  Sup.  Ct.  1891,  142  U.  S.  651, 
Gray,  J. 

Exchange  {Schooner)  vs.  McFadden,  U.  S.  Sup.  Ct.  1812,  7  Craucli, 
116,  Marshall,  Ch.  J. 

Fong  Yue  Ting  vs.  United  States,  U.  S.  Sup.  Ct.  1893,  149  U.  S.  698, 
Grat,  J. 

Geofroy  vs.  Biggs,  U.  S.  Sup.  Ct.  1890,  133  U.  S.  258,  Field,  J. 

Jones  vs.  United  States,  U.  S.  Sup.  Ct.  1890,  137  U.  S.  202,  Gray,  J. 

Neehj  vs.  Henkel,  U.  S.  Sup.  Ct.  1901,  180  U.  S.  109,  Harlan,  J. 

Neio  York  vs.  Miln  {Passenger  Cases),  U.  S.  Sup.  Ct.  1837,  11  Peters, 
102,  Barbour,  J. 

Paqnette  Habana,  The,  U.  S.  Sup.  Ct.  1900,  175  U.  S.  677,  Gray,  J. 

Pizarro,  The,  U.  S.  Sup.  Ct.  1817,  2  Wheaton,  227,  Story,  J. 

Quarles,  In  re,  U.  S.  Sup.  Ct.  1895,  158  U.  S.  532,  Gray,  J. 

Bose  vs.  Himeletj,  U.  S.  Sup.  Ct.  1808,  4  Cianch,  241,  Marshall,  Ch.  J. 

Boss,  In  re,  U.  S.  Sup.  Ct.  1891,  140  U.  S.  453,  Field,  J. 

United  States  vs.  Bauscher,  U.  S.  Sup.  Ct.  1886,  119  U.  S.  407,  Mil- 
ler, J. 

United  States  vs.  Wong  Kim  Ark  {Chinese  Baby  Case),  U.  S.  Sup.  Ct. 
1898,  169  U.  S.  649,  Gray,  J. 

Wong  Wing  vs.  United  States,  U.  S.  Sup.  Ct.  1896,  163  U.  S.  228, 
Shlras,  J. 

XVII. 

Extent  of  the  Treaty-Making  Power  of  the  United  States. 

American  Ins.  Co.  vs.  Canter  {Florida  Case),  U.  S.  Sup.  Ct.  1828,  1 
Peters,  511,  Marshall,  Ch.  J. 

Amiable  Isabella,  The,  U.  S.  Sup.  Ct.  1821,  6  Wheaton,  1,  Story.  J. 

Boyd  vs.  Nebraska,  U.  S.  Sup.  Ct.  1892,  143  U.  S.  135,  Fuller,  Cli.  J. 

Chae  Chan  Ping  vs.  United  States  {Chinese  Exclusion  Case),  U.  S.  Sup. 
Ct.  1889,  1.30  U.  S.  581,  Field,  J. 

Cheio  Heong  v.  United  States,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  536,  Har- 
lan, J. 

Daxisvs.  Police  Jury,  etc.,  U.S.  Sup.  Ct.  18.50.  9  Howard,  280,  Wayne,  J. 

Doe  {Clark)  vs.  Braden,  U.  S.  Sup.  Ct.  1853,  16  Howard,  635,  Taney, 
Ch.  J. 

Fleming  vs.  Page  {Tampico Duty  Case),  U.  S.  Sup.  Ct.  1850,  9  Howard, 
683,  Taney,  Ch.  J. 

Fong  Yue  Ting  vs.  United  States  {Chinese  Exclusion  Case),  U.  S.  Sup. 
Ct.  1893,  149  U.  S.  698.  Gray,  J. 


INSULAR  CASES  APPENDIX.  553 

Foster  vs.  Nellson,  U.  S.  Sup.  Ct.  1829,  2  Peters,  253,  Marshall,  Ch.  J. 

Geofroy  vs.  RUjgs,  U.  S.  Sup.  Ct.  1890,  133  U.  S.  258,  Field,  J. 

Head  Money  Cases,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  580,  Miller,  J. 

La  Abra,  etc.,  Co.  vs.  United  States,  U.  S.  Sup.  Ct.  1899,  175  U.  S.  423, 
Harlan,  J. 

MUchel  vs.  United  States,  U.  S.  Sup.  Ct.  1835,  9  Peters,  711,  Bald- 
win, J. 

New  Orleans  vs.  United  States,  U.  S.  Sup.  Ct.  1836,  10  Peters,  662, 
McLean,  J. 

New  York  vs.  Mlln  (Passenger  Cases),  U.  S.  Sup.  Ct.  1837,  11  Peters, 
102,  Barbour,  J. 

Ortiz,  Ex  parte,  U.  S.  Cir.  Ct.   Minnesota,   1900,  100  Fed.  Rep.  955, 

LOCHRAN,  J. 

Pollard  vs.  Hagan,  U.  S.  Sup.  Ct.  1845,  3  Howard,  212,  McKinley,  J. 

Boss,  In  re,  U.  S.  Sup.  Ct.  1891,  140  U.  S.  453,  Field,  J. 

Scott  vs.  Saiulford  [Bred  Scott  Case),  U.  S.  Sup,  Ct.  1857,  19  Howard, 
393,  Taney,  Ch.  J. 

Strother  vs.  Lucas,  U.  S.  Sup.  Ct,  1832,  6  Peters,  763,  Thompson,  J. 

United  States  vs.  Arredundo,  U.  S.  Sup.  Ct.  1832,  6  Peters,  691,  Bald- 
win, J. 

United  States  vs.  Forty-three  gallons,  etc.,  U.  S.  Sup.  Ct.  1876,  93  U,  S. 
188,  Davis,  J.;  and  1883,  108  U.  S.  491,  P^ield,  J, 

United  States  vs.  Gratiot,  U.  S,  Sup,  Ct,  1840,  14  Peters,  526,  Thomp- 
son, J, 

United  States  vs.  Nelson,  U.  S.  Dist.  Ct.  Alaska,  1886,  29  Fed.  Rep. 
202,  Dawson,  J.,  and  affirmed  30  Fed.  Rep.  112,  Deady,  J. 

United  States  vs.  Percheman,  U.  S.  Sup.  Ct.  1833,  7  Peters,  51,  Mar- 
shall, Ch.  J. 

United  States  vs.  Rauscher,  U,  S.  Sup.  Ct.  1886,  119  U,  S,  407,  Mil- 
ler, J, 

United  States  vs.  Reynes,  U.  S.  Sup.  Ct.  1850, 9  Howard,  127,  Daniel,  J, 

United  States  vs.  Repentigny,  U.  S.  Sup.  Ct.  1866,  5  Wallace,  211, 
Nelson,  J. 

Ware  vs.  Hylton,  U.  S.  Sup.  Ct.  1796,  3  Dallas,  199,  Chase,  Wilson, 
Paterson,  Cushing,  Iredell,  J  J. 

Whitney  vs.  Robertson,  U.  S.  Sup.  Ct.  1888,  124  U.  S.  190,  Field,  J. 

XVIII. 
Effect  of  Cession  of  Territory,  by  Treaty  and  by  Conquest,  on 

Private  Rights  of  the  Inhabitants  and  on  the  Continuance  op 

Local  Laws  op  the  Ceded  Territory, 

Alexander  vs.  Roulet,  U.  S.  Sup.  Ct.  1871,  13  Wallace,  386,  Davis,  J. 

American  Ins.  Co.  vs.  Canter  (Florida  Case),  U.  S.  Sup.  Ct.  1828,  1 
Peters,  511,  Marshall,  Ch,  J, 

Blankard  vs.  Galdy,  King  &  Queen's  Bench,  5  Wm.  &  M.  4  Modern 
222,  Per  Curiam. 

Calvin's  Case,  Court  Exch.  Cliain.  6  .James  I,  4  Coke,  1. 

Campbell  \s,.  Hall,  Kings'  Bench,  15  Geo.  Ill,,  Cowper,204,  LOBD  Mans- 
field, 


OO^  TREATY-MAKING  POWER  OF  THE  V.  S. 

Chicago,  etc.,  By.  Co.,  vs.  McGlinn,  U.  S.  Sup.  Ct.  1885,  114  U.  S.  542, 
Field,  J. 

Chouteau  vs.  Eckhart,  U.  S.  Sup.  Ct.  1844,  2  Howard,  344,  Catron,  J. 

Cross  vs.  Harrison  (San  Francisco  Duty  Case),  U.  S.  Sup.  Ct.  1853,  16 
Howard,  164,  Wayxe,  J. 

Delassus  vs.  United  States,  U.  S.  Sup.  Ct.  1835,  9  Peters,  117,  Mar- 
shall, Ch.  J. 

Fama,  The,  High  Ct.  Admiralty  1804,  5  Ch.  Robinson,  106,  Sir  W. 
Scott. 

Foster  vs.  Neilson,  U.  S.  Sup.  Ct.  1829,  2  Peters,  253,  Marshall, 
Ch.  J. 

Garcia  vs.  Lee,  U.  S.  Sup.  Ct.  1838,  12  Peters,  511,  Taney,  Ch.  J. 

Hullet  vs.  Hunt,  Sup.  Ct.  Alabama,  1845,  7  Ala.  Rep.  882,  Collier,  Ch.  J. 

E olden  vs.  Hardy,  U.  S.  Sup.  Ct.  1898,  169  U.  S.  366,  Brown,  J. 

InrjUsvs.  Sailors'  Snug  Harbor,  U.  S.  Sup.  Ct.  1830,  3  Peters,  99,  Thomp- 
son, J. 

Keene  vs.  McDonoiigh,  U.  S.  Sup.  Ct.  18.34,  8  Peters,  308,  Thompson,  J. 

Leitensdurfer  vs.  Webh,  U.  S.  Sup.  Ct.  1857,  20  Howard,  176,  Daniel,  J. 

Lord  Bishop  of  Natal,  Privy  Council,  1864,  3  Moore  P.  C.  N.  S.  115. 
Westbury,  Ld.  Chan. 

McKay  vs.  Campbell,  U.  S.  Dist.  Ct.  Oregon,  1871,  2  Sawyer,  118, 
Deady,  J. 

Mitchel  vs.  United  Slates,  U.  S.  Sup.  Ct.  1835,  9  Peters,  711,  Bald- 
win, J. 

Neely  vs.  Henkel,  U.  S.  Sup.  Ct.  1901,  180  U.  S.  109,  Harlan,  J. 

New  Orleans  vs.  Armas,  U.  S.  Sup.  Ct.  1835,  9  Peters,  224,  Mar- 
shall, Ch.  J. 

Neiv  Orleans  vs.  Steamship  Co.,  V.  S.  Sup.  Ct.  1874,  20  Wallace,  387, 

SwAYNE,  J. 

Ortiz,  Exparte,  U.  S.  Cir.  Ct.  Minnesota,  1900,  100  Fed.  Rep.  955,  Loch- 
ran,  J. 

Penn  vs.  Lord  Baltimore,  High  Ct.  of  Chancery,  1750, 1  Vesey,  Sr.,  445, 
Hardwicke,  Ld.  Chan. 

Pollard  vs.  Hagan,  U.  S.  Sup.  Ct.  1845,  3  Howard,  212,  McKinley,  J. 

Pollard's  Heirs  vs.  Kibbe,  U.  S.  Sup.  Ct.  1840,  14  Peters,  353,  Thomp- 
son, J. 

Sah  Quah's  Case,  U.  S.  Dist.  Ct.  Alaska,  1886,  31  Fed.  Rep.  327,  Daw- 
son, J. 

Scott  vs.  Sandford  [Bred  Scott  Case).  U.  S.  Sup.  Ct.  1857,  19  Howard, 
393,  Taney,  Ch.  J. 

Soulard  vs.   United  States,  U.  S.  Sup.  Ct.  1330,  4  Peters  511,  Mar 

SHALL,  Ct.  J. 

Stearns  vs.  United  States,  U.  S.  Sup.  Ct.  1867, 6  Wallace,  589,  Swayne,  J. 

Strother  vs.  Lnca.<i,  U.  S.  Sup.  Ct.  1832,  6  Peters,  763,  Thompson,  J. 

United  States  vs.  Arredondo,  U.  S.  Sup.  Ct.  1832,  6  Peters,  691,  Bald- 
win, J. 

United  States  vs.  Castillero,  U.  S.  Sup.  Ct.  1812,  2  Black,  1,  Clif- 
ford, J. 


INSULAR  CASES  APPENDIX.  555 

United  States  vs.  Gratiot,  U.  S.  Sup.  Ct.  1840,  14  Peters,  526,  Thomp- 
son, J. 

United  States  vs.  Percheman,  U.   S.  Sup.  Ct.  1833,  7  Peters,  51,  Mak- 

SHALL,  Ch,  J. 

United  States  vs.  RepentUjny,  U.  S.  Sup.  Ct.  186G,  5  Wallace,  211,  Nei^- 
SON,  J, 

United  States  vs.  Eeynes,  U.  S.  Sup.  Ct.  1850,  9  Howard,  127,  Dan- 
iel, J. 

United  States  vs.  Rice  (Tlie  Castine  Case),  U.  S.  Sup.  Ct,  1819,  4 
Wheatoa,  246,  Story,  J. 

XIX. 

Personal  and  Individual  Rights  and  Liberties  Guaranteed  by 
THE  Constitution  of  the  United  States. 

American  Publishing  Co.  vs.  Fisher  (  Utali  Jury  Case),  U.  S.  Sup.  Ct. 
1897,  166  U.  S.  464,  Brewer,  J. 

Bunk  of  Coluntbia  vs.  Okely,  U.  S.  Sup.  Ct.  1819,  4  Wheaton,  235, 
Johnson,  J. 

Barnes  vs.  Dist.  of  Cnl.,  U.  S.  Sup.  Ct.  1875,  91  U.  S.  542,  Hunt,  J. 

Boyd  vs.  Xebraska,  U.  S.  Sup.  Ct.  1892,  143  U.  S.  135,  Fuller,  Ch.  J. 

Boyd  vs.  United  States,  U.  S.  Sup.  Ct.  1886,  116  U.  S.  616,  Brad- 
ley, J. 

Callan  vs.  Wilson,  U.  S.  Sup.  Ct.  1887,  127  U.  S.  540,  Harlan,  J. 

Calcin''s  Case,  Court  Exch.  Cham.  6  James  I,  4  Coke,  1. 

Campbell  vs.  Hall,  King's  Bench,  15  Geo.  Ill,  Cowper,  204,  Lord  Mans- 
field. 

Capital  Traction  Co.  vs.  Hof,  U.  S.  Sup.  Ct.  1899,  174  U.  S.  1,  Gray,  J. 

Cumminr/N  vs.  Missouri,  U.  S.  Sup.  Ct.  1866,  4  Wallace,  277,  Field,  J. 

Delassus  vs.  United  States,  U.'  S.  Sup.  Ct.  1835,  9  Peters,  117,  Mar- 
shall, Ch.  J. 

Doe  (Clark)  vs.  Braden,  U.  S.  Sup.  Ct.  1853,  16  Howard,  635,  Taney, 
Ch.  J.    . 

Foster  vs.  Neilson,  U.  S.  Sup.  Ct.  1829,  2  Peters,  2.53,  Marshall, 
Ch.  J. 

Garcia  vs.  Lee,  U.  S.  Sup.  Ct.  1838,  12  Peters,  511,  Taney,  Ch.  J. 

Geofroy  vs.  Eiggs,  U.  S.  Sap.  Ct.  1890,  133  U.  S.  2.-)8,  Field,  J. 

Great  We.-^tern  Ins.  Co.  vs.  United  States,  U.  S.  Sup.  Ct.  1884,  112 
U.  S.  193,  Miller,  J. 

Haver  vs.  Yaker,  U.  S.  Sup.  Ct.  1869,  9  Wallice,  32,  Davis,  J. 

Head  Money  Cnsps,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  580,  Miller,  J. 

Inglis  vs.  Sailors'  Snug  Harbor,  U.  S.  Sup.  Ct.  1830,  3  Peters,  99, 
Thompson,  J. 

La  Abra,  etc.,  Co.  vs.  United  States,  U.  S.  Sup.  Ct.  1899,  175  U.  S. 
423,  Harlan,  J. 

Lem  Moon  Sing  vs.  United  States,  U.  S.  Sup.  Ct.  1895,  158  U.  S.  538, 
Harlan,  J. 

Lord  Bishop  of  Natal,  Privy  Council,  1864,  3  Moore,  P.  C.  N.  S.  115, 
Westbury,  Ld.  Chan. 


556  TREATY-i\rAKTxrr  rowKn  of  the  u.  s. 

McKai/  vs.  Campbell,  U.  S.  Dist.  Ct.  Oregon,  1871,  2  Sawyer,  118, 
Deady,  J. 

Marbunj  vs.  Madison,  U.  S.  Sup.  Ct.  1803,  1  Cranch,  137,  Marshall, 
Ch.  J. 

Maxioell  vs.  Doio,  U.  S.  Snp.  Ct.  1900,  176  U.  S.  581,  Peckham,  J. 

ilillirjan.  Ex  parte,  U.  S.  Sup.  Ct.  1866,  4  Wallace,  2,  Davis,  J. 

Minor  vs.  Happersitt  {  Woman's  Rights  Case],  U.  S.  Sup.  Ct.  1874,  21 
Wallace,  162,  AVaite,  Ch.  J. 

Muriihy  vs.  Ramsey,  U.  S.  Sup.  Ct.  188."),  114  U.  S.  15,  Matthews,  J. 

Neagle,  In  re,  U.  S.  Sup.  Ct.  1890,  135  U.  S.  1,  Miller,  J. 

NeeUj  vs.  Henkel,  U.  S.  Sup.  Ct.  1901,  180  U.  S.  109,  Harlan,  J. 

O'Neill  vs.  Vermont,  U.  S.  Sup.  Ct.  1892,  144  U.  S.  323,  Blatch- 
FORD,  J. 

Ortiz,  Ex  parte,  U.  S.  Cir.  Ct.  Minn.  1900,  100  Fed.  Kep.  955,  Loch- 
rax,  J. 

Boss,  In  re,  U.  S.  Sup.  Ct.  1891,  140  U.  S.  453,  Field,  J. 

Sah  Quah's  Case,  U.  S.  Dist.  Ct.  Alaska,  1886,  31  Fed.  Rep.  327,  Daw- 
son, J. 

Scott  vs.  Sanford  (Bred  Scott  Case),  U.  S.  Sup.  Ct.  1857,  19  Howard, 
393,  Taney,  Ch.  J. 

Siebold,  Ex  parte,  U.  S.  Sup,  Ct.  1879,  100  U.  S.  371,  Bradley,  J. 

Slaughter  House  Cases,  U.  S,  Sup.  Ct.  1872, 16  Wallace,  36,  Miller,  J. 

Spies  vs.  Illinois  (Chicago  Anarchist  Case),  U.  S.  Sup.  Ct.  1887,  123  U. 
S.  131,  Waite,  Ch.  J. 

Tennessee  vs.  Davis,  U.  S.  Sup.  Ct.  1879,  100  U.  S.  257,  Strong,  J. 

Thompson  vs.  Utah,  U.  S.  Sup.  Ct.  1898,  170  U.  S.  343,  Harlan,  J. 

United  States  vs.  Morrif>,  U.  S.  Cir.  Ct.  Mass.  1851,  1  Curtis,  23, 
Curtis,  J. 

United  States  vs.  Eauscher,  U.  S.  Sup.  Ct.  1886,  119  U.  S.  407,  Mil- 
ler, J, 

Vcdlandigham,  Ex  parte,  U.  S.  Cir.  Ct.  Ohio,  1863,  Fed.  Cas.  16,816 
(pamphlet  Rickey  &  Carroll,  Cincinnati),  Leavitt,  J. 

Weimerv&.  Bunbury,  Sup.  Ct.  Micliigan,  1874,  30  Mich.  201,  Cooley,  J. 

Tick  Wo  vs.  Hopkins,  U.  S.  Sup.  Ct.  1886,  118  U.  S.  356,  Matthews,  J. 

XX. 

Citizenship,  Birth  and  Allegiance  as  affected  by  Treaties, 

Statutes  and  the  Constitution. 

American  Ins.  Co.  vs.  Canter  (Florida  Case),  U.  S.  Sup.  Ct.  1828,  1 
Peters,  511,  Marshall,  Ch.  J. 

Barnes  vs.  District  of  Columbia,  U.  S.  Sup.  Ct.  1875,  91  U.  S.  542, 
Hunt,  J. 

Boyd  vs.  Nebraska,  U.  S.  Sup.  Ct.  1892,  143  U.  S.  135,  Fuller,  Ch.  J. 

Calviri's  Case,  Court  of  Exch.  Chamber,  6  James  I,  4  Coke,  1. 

Campbell  vs.  Hall,  King's  Bencli,  15  Geo.  Ill,  Cowper,  204,  Lord 
Mansfield. 

Cherokee  Nation  vs.  Georgia,  U.  S.  Sup.  Ct.  1831,  5  Peters,  1,  Mar- 
shall, Ch.  J. 


INSULAR  CASES  APPENDIX.  557 

Cooper,  III  re  [Bering  Sea  Cases),  U.  S.  Sup.  Cfc.  1891,  138  IT.  S.  404, 
and  1892,  143  U.  S.  472,  Fuller,  Cli.  J. 

mic  vs.  yViUdiis,  U.  S.  Sap.  Ct.  1884,  112  U.  S.  94,  G-ray,  J. 

Fong  Yue  TIykj  \s.  United  States  {Chinese  Exclusion  Case),  U.  S.  Sup. 
Ct.  1893,  149  U.  S.  G98,  Gray,  J. 

Geofroy  vs.  RUigs,  U.  S.  Sup.  Ct.  1890,  133  U.  S.  258,  Field,  J. 

Head  Money  Cases,  U.  S.  Sixp.  Ct.  1884,  112  U.  S.  580,  Miller,  J. 

Hepburn  vs.  Ellzey,  TJ.  S.  Sup.  Ct.  1805,  2  Cranch,  445,  Marshall, 
Ch.  J. 

IngliH  vs.  Sailors'  Snug  Harbor,  U.  S.  Sup.  Ct.  1830,  3  Peters,  99, 
Thompson,  J. 

Lynch  vs.  Clark,  N".  Y.  Court  of  Chancery,  1844,  1  Sanford  Ch.  583, 
Sandford,  V.  Chau. 

McKay  vs.  Campbell,  U.  S.  Dist.  Ct.  Oregon,  1871,  2  Sawyer,  118, 
Deady,  J. 

Martin  vs.  Hunter,  U.  S.  Sup.  Ct.  1816,  1  Wheaton,  304,  Story,  J. 

Minor  vs.  Happersett  (Woman's  Rights  Case),  U.  S.  Sup.  Ct.  1874,  21 
Wallace,  162,  Waite,  Ch.  .J. 

Monre  vs.  Elinois,  U.  S.  Sup.  Ct.  1852,  14  Hoveard,  13,  Grier,  J. 

O'Neill  vs.   Vermont,   U.   S.   Sup.  Ct.   1892,  144  U.   S.  323,  Blatch- 

FORD,  J. 

Ortiz,  Ex  parte,  U.    S.  Cir.  Ct.  Minnesota,   1900,   100  Fed.  Rep.  955, 

LOCHRAX,   J. 

PennYB.  Lord  Baltimore,  High  Ct.  of  Chancery,  1750,  1  Vesey,  Sr., 
445,  Hardwicke,  Lord  Chan. 

Pizarro,  The,  IT.  S.  Sup.  Ct.  1817,  2  Wheaton,  227,  Story,  J. 

Ross,  In  re,  U.  S.  Sup.  Ct.  1891,  140  U.  S.  453,  Field,  ,J. 

Sah  Quah's  Case,  U.  S.  Dist.  Ct.  Alaska,  1886,  31  Fed.  Rep.  .327,  Daw- 
son, J  . 

Scott  vs.  Sandford,  (Dred  Scott  Case),  U.  S.  Sup.  Ct.  1857,  19  Howard, 
393,  Taney,  Ch.  ,J. 

Shanks  vs.  Dupont,  U.  S.  Sup.  Ct.  1830,  3  Peters,  242,  Story,  J. 

Slaughter  House  Cases,  U.  S.  Sup.  Ct.  1872,  16  Wallace,  36,  Miller,  J. 

Smith  vs.  Maryland,  U.  S.  Sup.  Ct.  1810,  6  Cranch,  286,  Washing- 
ton, J. 

Spies  vs.  Illinois  [Chicago  Anarchist  Cases),  IT.  S.  Sup.  Ct.  1887,  123 
U.  S.  131,  Waite,  Ch.  ,J. 

Swan,  The,  U.  S.  Dist.  Ct.  Washington,  1892,  50  Fed.  Rep.  108,  Han- 
ford,  J. 

Tennessee  vs.  Davis,  U.  S.  Sup.  Ct.  1879,  100  U.  S.  257,  Strong,  J. 

Texas  vs.  White,  U.  S.  Sup.  Ct.  1868,  7  Wallace,  700,  Chase,  Ch.  .1. 

Thirty  Hogsheads  of  Sugar  vs.  Boyle,  U.  S.  Sup.  Ct.  1815,  9  Cranch, 
191,  Marshall,  Cli.  ,J. 

United  States  vs.  Forty-three  Gallons,  etc.,  U.  S.  Sup.  Ct.  1876,  93  U.  S. 
188,  Davis,  J.,  and  1883,  108  U.  S.  491,  Field,  ,J. 

United  Statesvs.  Kayama,  U.  S.  Sup.  Ct.  1886,  118  U.  S.  375,  Mil- 
ler, J. 

United  States  vs.  Osborne,  U.  S.  Dist.  Ct.  Oregon,  1880,  6  Sawyer, 
406,  Deady,  J. 


558  TREATY-MAKING  POVv^Ell  OF  THE  U.  S. 

United  States  vs.  Repentkjny,  U.  S.  Sup,  Ct,  1866,  5  Wallace,  211,  Nel- 
sox,  J. 

United  States  vs.  Rhodes,  U.  S.  Cir.  Ct.  Kentucky,  1866,  1  Abb.  U.  S. 
Kep.  28,  SwAYNK,  J. 

United  States  vs.  Boyers,  U.  S.  Sup.  Ct.  1846,  4  Howard,  .j67,  Ta- 
ney, Cli.  J. 

United  States  vs.  Wonf/  Kim  Ark  {Chinese  Baby  Case),  U.  S.  Sup.  Ct. 
1898,  l()i)  U.  S.  649,  Gkay,  J. 

Wonrj  Winy  vs.  United  States,  U.  S.  Sup.  Ct.  1896,  163  U.  S.  228, 
Shi  HAS,  J. 

Worcester  vs.  Georyia,  U.  S.  Sup.  Ct.  1832,  6  Peters,  515,  Mar- 
shall, Ch.  J. 

Yick  Wo  vs.  Hopkins,  U.  S.  Sup.  Ct.  1886,  118  U.  S.  356,  Matthews,  J. 

XXI. 

Construction    of    Treaties    and    General    Rules    Applicable 

Thereto.  Executive  and  Judicial  Construction,  Congres- 
sional POAVER  thereover. 

Amiable  Isabella,  The,  U.  S.  Sup.  Ct.  1821,  6  Wheaton,  1,  Story,  J. 

Boijd  vs.  Nebraska,  U.  S.  Sup.  Ct.  1892,  143  U.  S.  135,  Fuller,  Ch.  J. 

Castru  vs.  DeUriarte,  U.  S.  Dist.  Ct.  S.  D.  N.  Y.  1883,  16  Fed.  Kep.  93, 
Brown,  J. 

Chae  Chan  Piny  vs.  United  States  (Chinese  Exclusion  Case),  U.  S.  Sup. 
Ct.  1889,  130  U.  S.  581,  Field,  J. 

Cherokee  Tobacco,  The,  U.  S.  Sup.  Ct.  1870, 11  Wallace,  616,  Swayxe,  J. 

Cheio  Heong  vs.  United  States,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  536,  Har- 
lan, J. 

Clinton  Bridge,  The,  U.  S.  Cir.  Ct.  Iowa,  1867, 1  Wool  worth,  150,  Mil- 
ler, J. 

Coffee  vs.  Groover,  U.  S.  Sup.  Ct.  1887,  123  U.  S.  1,  Bradley,  J. 

Elk  vs.  Wilkins,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  94,  Gray,  J. 

Fony  Yue  Tiny  vs.  United  States  {Chinese  Exclusion  Case),  U.  S.  Sup. 
Ct.  1893,  149  U.  S.  698,  Gray,  J. 

Foster  vs.  Neilson,  U.  S.  Sup.  Ct.  1829,  2  Peters,  253,  Marshall, 
Ch.  J. 

Frelinyhuysen  vs.  Key,  U.  S.  Sup.  Ct.  1884,  110  U.  S.  63,  Waite,  Ch.  J. 

Garcia  vs.  Lee,  U.  S.  Sup.  Ct.  1838,  12  Peters,  511,  Taney,  Ch.  J. 

Geofroy  vs.  Biyys,  U.  S.  Sup.  Ct.  1890,  133  U.  S.  258,  Field,  J. 

Great  Western  Ins.  Co.  vs.  United  States,  U.  S.  Sup.  Ct.  1884,  112  U.  S. 
193,  Miller,  .J. 

Griswold  vs.  Atlantic  Dock  Co.,  N.  Y.  Sup.  Ct.  1855,  21  Barbour,  225, 
Strong,  J. 

Haver  vs.  Taker,  U.  S.  Sup.  Ct.  1869,  9  Wallace,  32,  Davis,  J. 

Bend  Money  Cases,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  580,  Miller,  J. 

Holmes  vs.  Jennison,  U.  S.  Sup.  Ct.  1840,  14  Peters,  540,  Thompson,  J. 

Inylis  vs.  Sailors'  Snuy  Harbor,  U.  S.  Sup.  Ct.  1830,  3  Peters,  99,  Thomp- 
son, J. 

Jecker  vs.  Mayee  (Haver  vs.  Taker),  U.  S.  Sup.  Ct.  1869,  9  Wallace,  32, 
Davis,  J. 


INSULAR  CASES  APPENDIX.  559 

Kansas  Indians,  The,  U.  S.  Sup.  Ct.  1866,  5  Wallace,  737,  Davis,  J. 

La  Ahra,  etc.,  Co.  vs.  United  States,  U.  S.  Sup.  Ct.  1899,  175  U.  S.  423, 
Harlan,  J. 

McKay  vs.  Caiiq)belt,  U.  S.  Dist.  Ct.  Oregon,  1871,  2  Sawyer,  118, 
Deady,  J. 

Martin  vs.  Waddell,  U.  S.  Sup.  Ct.  1842,  16  Peters,  367,  Taney,  Ch.  J. 

Martin  vs.  Hunter,  U.  S.  Sup.  Ct.  1816,  1  Wheaton,  304,  SxoitY,  J. 

Mitchel  vs.  United  States,  U.  S.  Sup.  Ct.  1835,  9  Peters,  711,  Bald- 
win, J. 

Neelt/  vs.  Ilenkel,  U.  S.  Sup.  Ct.  f901,  180  U.  S.  109,  Harlan,  J. 

New  Orleans  vs.  Armas,  U.  S.  Sup.  Ct.  1835,  9  Peters,  224,  Mar- 
shall, Ch.  J. 

Nerv  Orleans  vs.  United  States,  U.  S.  Sup.  Ct.  1836,  10  Peters,  662, 
McLean,  J. 

Neiv  York  vs.  Miln  {Passenger  Cases),  U.  S.  Sup,  Ct.  1837,  11  Peters, 
102,  Barbour,  J. 

Pollard  vs.  Hagan,  U.  S.  Sup.  Ct.  1845,  3  Howard,  212,  McKinley,  J. 

Pollard's  Heirs  vs.  Kibbe,  U.  S.  Sup.  Ct.  1840,  14  Peters,  353,  Thomp- 
son, J. 

Eoss,  In  re,  U.  S.  Sup.  Ct.  1891,  140  U.  S.  453,  Field,  J. 

Sah  Quah's  Case,  U.  S.  Dist.  Ct.  Alaska,  1886,  31  Fed.  Rep.  327,  Daw- 
son, J. 

Shanks  vs.  Dnpont,  U.  S.  Sup.  Ct.  1830,  3  Peters,  242,  Story,  J. 

Soulard  vs.  United  States,  U.  S.  Sup.  Ct.  1830,  4  Peters,  511,  Mar- 
shall, Ch.  J. 

Strothers  vs.  Lucas,  U.  S.  Sup.  Ct.  1832,  6  Peters,  763,  Thompson,  J. 

Taylor  vs.  Morton,  U.  S.  Cir,  Ct.  Mass.  1855,  2  Curtis,  454,  Curtis,  J., 
(aff'd  U.  S.  Sup.  Ct.  1862,  2  Black,  481,  Clifford,  J.). 

United  States  vs.  Arredondo,  U.  S.  Sup.  Ct.  1832,  6  Peters,  691,  Bald- 
win, J. 

United  States  vs.  Castillero,  U.  S.  Sup.  Ct.  1862,  2  Black,  1,  Clif- 
ford, J. 

United  States  vs.  Forty-three  Gallons,  etc.,  U.  S.  Sup.  Ct.  1876,  93 
U.  S.  188,  Davis,  J.,  and  1883,  108  U.  S.  491,  Field,  J. 

United  States  vs.  Gratiot,  U.  S.  Sup.  Ct.  1840,  14  Peters,  526,  Thomp- 
son, J. 

United  States  vs.  Kagaina,  U.  S.  Sup.  Ct.  1886,  118  U.  S.  375,  Mil- 
ler, J. 

United  States  vs.  Percheman,  U.  S.  Sup.  Ct.  1833,  7  Peters,  51,  Mar- 
shall, Ch.  J. 

United  States  vs.  Ravscher,  U.  S.  Sup.  Ct.  1886,  119  U.  S.  407,  Mil- 
ler, J. 

United  States  vs.  liepentigny,  U.  S.  Sup.  Ct.  1866,  5  Wallace,  211,  Xel- 

SON,  J. 

United  States  vs.  Reynes,  U.  S.  Sup.  Ct.  1850,  9  Howard,  127,  Dan- 
iel, J. 

United  States  vs.  Rogers,  U.  S.  Sup.  Ct,  1846,  4  Howard,  567,  Taney, 
Ch.  J. 


560  TREATV-MAKINC  IMIWER  OF  THE  U.  S. 

United  States  vs.  Texa^,  U.  S.  Sup.  Ct.  1896,  1G2  U.  S.  1,  Harlan,  J, 

United  States  vs.  Tobacco  Factory,  U.  S.  Cir.  Ct.  Arkansas,  1871,  1 
Dillon,  264,  Caldwell,  J. 

Ware  vs.  Hi/ltoa,  U.  S.  Sup.  Ct.  1796,  3  Dallas,  199,  Chase,  Wilson, 
Patekson,  Cushing,  Iredell,  JJ. 

Whitney  vs.  Robertson,  U.  S.  Sup.  Ct.  1888,  124  U.  S.  190,  Field,  J. 

Wo7ig  Wing  vs.  United  States,  U.  S.  Sup.  Ct.  1896,  163  U.  S.  228, 
Shiras,  J. 

Tick  Wo  vs.  Hopkins,  U.  S.  Sup.  Ct.  1886,  118  U.  S.  ,356,  Matthews,  J, 

XXII. 
Relative  Effects  of  Treaties  and  United  States  Statutes. 

Bates  vs.  Clark,  U.  S.  Sup.  Ct.  1877,  95  U.  S.  204,  Miller,  J. 

Chae  Chan  Ping  vs.  United  States  {Chinese  Exclusion  Case),  U.  S.  Sup. 
Ct.  1889,  130  U.  S.  581,  Field,  J. 

Cherokee  Tobacco,  The,  U.  S.  Sup.  Ct.  1870,  11  Wallace,  616,  Swayne,  J. 

Chew  Heong  vs.  United  States,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  536,  Har- 
lan, J. 

Doe  (Clark)  vs.  Braden,  U.  S.  Sup.  Ct.  1853,  16  Howard,  6.35.  Taney 
Ch.  J. 

Fong  Yue  Ting  vs.  United  States  {Chinese  Exclusion  Case),  U.  S.  Sup 
Ct.  1893,  149  U.  S,  698,  Gray,  J. 

Foster  vs.  Neilsoii,  U.  S.  Sup.  Ct.  1829,  2  Peters,  253,  Marshall, 
Ch.  J. 

Frelinghuysen  vs.  Key,  U.  S.  Sup.  Ct.  1884, 110  U.  S.  63,  Waite,  Ch.  J. 

Great  Western  Ins.  Co.  vs.  United  States,  U.  S.  Sup.  Ct.  1884,  112 
U.  S.  193,  Miller,  J. 

Griswold  vs.  Atlantic  Dock  Co.,  N.  Y.  Sup.  Ct.  1855,  21  Barbour,  225, 
Strong,  J. 

Head  Mojiey  Cases,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  580,  Miller,  J. 

Kansas  Indians,  The,  U.  S.  Sup.  Ct.  1866,  5  Wallace,  737,  Davis,  J. 

LaAbra,  etc.,  Co.  vs.  United  States,V.  S.  Sup.  Ct.  1899',  175  U.  S.  423, 
Harlan,  J. 

Mobile  vs.  Eslava,  U.  S.  Sup.  Ct.  1842,  16  Peters,  234,  McLean,  J. 

Neio  York  vs.  Miln  {Passenger  Cases),  U.  S.  Sup.  Ct.  1837,  11  Peters, 
102,  Barbour,  J. 

Ross,  In  re,  U.  S.  Sup.  Ct.  1891,  140  U.  S.  453,  Field,  J. 

Taylor  vs.  Morton,  U.  S.  Cir.  Ct.  Mass.  1855,  2  Curtis,  454,  Curtis,  J., 
(affVl  U.  S.  Sup.  Ct.  1862,  2  Black,  481,  Clifford,  J.). 

United  States  vs.  Forty-three  Gallons,  etc.,  U.  S.  Sup.  Ct.  1876,  93 
U.  S.  188,  Davis,  J.,  and  1883,  108  U.  S.  491,    Field,  J. 

United  States  vs.  Rauscher,  U.  S.  Sup.  Ct.  iseo,  119  U.  S.  407,  Mil- 
ler, J. 

Whitney  vs.  Robertson,  U.  S.  Sup.  Ct.  1888,  124  U.  S.  190,  Field,  J. 

Wong  Wing  vs.  United  States,  U.  S.  Sup.  Ct.  1896,  163  U.  S.  228 
Shiras,  J. 

Yick  Wo  vs.  Hopkins,  U.  S.  Sup.  Ct.  1886,  118  U.  S.  356,  Matthews,  J. 


INSULAR  CASES  APPENDIX.  561 

XXIII. 

Relative  Effects  of  Treaties  made  by  the  United  States  and 

State  Laws. 

Cherokee  Nation  vs.  Georgia,  U.  S.  Sup.  Ct.  1831,  5  Peters,  1,  Mab- 
shall,  Ch.  J. 

Clinton  Bridge,  The,  U.  S.  Cir.  Ct.  Iowa,  1867,  1  Woolworth,  150,  Miii- 

liER,  J. 

Geofroy  vs.  Biugs,  U.  S.  Sup.  Ct.  1890,  133  U.  S.  258,  Field,  J. 

Haver  vs.  Taker,  U.  S.  Sup.  Ct.  1869,  9  Wallace,  32,  Davis,  J. 

Holmes  vs.  Jennison,  U.  S.  Sup.  1840,  14  Peters,  540,  Thompson,  J. 

Hurltado  vs.  California,  U.  S.  Sup.  1884,  143  U.  S.  570,  Blatchford,  J. 

Inglls  vs.  Sailors'  Snug  Harbor,  U.  S.  Sup.  Ct.  1830,  3  Peters,  99,  Thomp- 
son, J. 

Jecker  vs.  Magee,  same  as  Haver  vs.  Yaker,  supra. 

Martin  vs.  Waddell,  U.  S.  Sup.  Ct.  1842,  16  Peters,  367,  Taney,  Ch.  J. 

Martin  vs.  Hunter,  U.  S.  Sup.  Ct.  1816,  1  Wheaton,  304,  Story,  J. 

New  York  vs.  Miln  (Passenger  Cases),  U.  S.  Sup.  Ct.  1837,  11  Peters, 
102,  Barbour,  J. 

Shanks  vs.  Dupont,  U.  S.  Sup.  Ct.  1830,  3  Peters,  242,  Story,  J. 

United  States  vs.  Forty-three  Gallons,  etc.,  U.  S.  Sup.  Ct.  1876,  93  U. 
S.  188,  Davis,  J.;  1883,  108  U.  S.  491,  Field,  J. 

Ware  vs.  Hyltan,  U.  S.  Sup.  Ct.  1796,  3  Dallas,  199,  Chase,  Wilson, 
Paterson,  Cushing,  Iredell,  JJ. 

Tick  Wo  vs.  Hopkins.  U.  S.  Sup.  Ct.  1886, 118  U.  S.  356,  Matthews,  J. 

XXIV. 

When   Treaties  take  Effect  as  to  the  Contracting   Govern- 
ments AND  AS  to  the  KIGHTS  OF  INDIVIDUALS  AFFECTED  THEltEBY. 

Chouteau  vs.  Eckhurt,  U.  S.  Sup.  Ct.  1844,  2  Howard,  344,  Catron,  J. 

Davis  vs.  Police  Jury,  etc.,  U.  S.  Sup.  Ct.  1850,  9  Howard,  280, 
Wayne,  J. 

Doe  (Clark)  vs.  Braden,  U.  S.  Sup.  Ct.  1853,  16  Howard,  635,  Taney, 
Ch.  J. 

Haver  vs.  Yaker,  U.  S.  Sup.  Ct.  1869,  9  Wallace,  32,  Davis,  J. 

Head  Money  Cases,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  580,  Miller,  J. 

Inglis  VS.  Sailors''  Snug  Harbor,  U.  S.  Sup.  Ct.  1830,  3  Peters,  99, 
Thompson,  J. 

Jecker  vs.  Magee,  same  as  Haver  vs.  Yaker,  supra. 

Ortiz,  Ex  parte,  U.  S.  Cir.  Ct.  Minn.  1900,  100  Fed.  Rep.  9.55,  LocH- 
RAN,  J. 

TuT/lor  vs.  Morton,  U.  S.  Cir.  Ct.  Mass.  1855,  2  Curtis,  454,  Curtis,  J. 
(aff'd  U.  S.  Sup.  Ct.  1862,  2  Black.  4S1,  Cliffohd,  J.). 

United  States  vs.  Beynes,  U.  S.  Sup.  Ct.  1850,  9  Howard,  127,  Dan- 
iel, J. 

Whitney  vs.  Robertson,  U.  S.  Sup.  Ct.  1888,  124  U.  S.  190,  Field,  J. 

36 


562  TKEATY-.MAKING  POWER  OF  THE  U.  S. 

XXV. 

Status  of  Indian  Tribes  and  the  Construction  of  Indian  Trea- 
ties; THE  Relative  Effect  of  Indian  Treaties  and  State  and 
Federal,  Laavs. 

Bates  vs.  Clark,  U.  S.  Sup.  Ct.  1877,  95  U.  S.  204,  Miller,  J. 

Cherokee  Nation  vs.  Georgia,  U.  S.  Sup.  Ct.  1831,  6  Peters,  1,  Mar- 
shall, Ch.  J. 

Cherokee  Tobacco,  The,  U.  S.  Sup.  Ct.  1870, 11  Wallace,  616,  Swayne,  J. 

Crow  Don,  Ex  parte,  U.  S.  Sup.  Ct.  1883,  109  U.  S.  556,  Matthews,  J. 

Elk  vs.  Wilkinx,  U.  S.  Sup.  Ct.  1884,  112  U.  S.  94,  Gray,  J. 

Johnson  vs.  Mcintosh,  U.  S.  Sup.  Ct.  1823,  8  Wheaton,  543,  Mar- 
shall. Ch.  J. 

Kansas  Indians,  The,  U.  S.  Sup.  Ct.  1866,  5  Wallace,  737,  Davis,  J. 

Sah  Quah's  Case,  U,  S.  Dist.  Ct.  Alaska,  1886,  31  Fed.  Rep.  327,  Daw- 
son, J. 

Taltan  vs.  Mayes,  U.  S.  Sup.  Ct.  1896,  163  U.  S.  376,  White,  J. 

United  States  vs.  Forty-three  Gallons,  etc.,  U.  S.  Sup.  Ct.  1876,  93 
U.  S.  188,  Davis,  J.,  and  1883,  108  U.  S.  491,  Field,  J. 

United  States  vs.  Eagama,  U.  S.  Sup.  Ct,  1886,  118  U.  S.  375,  Mil- 
ler, J. 

United  .States  vs.  Osborne,  U.  S.  Dist.  Ct.  Oregon,  1880,  6  Sawyer,  406, 
Deady,  J. 

United  States  vs.  Rogers,  U.  S.  Sup.  Ct.  1846,  4  Howard,  567,  Taney, 
Ch.  J. 

United  States  vs.  Tobacco  Factory,  U.  S.  Cir.  Ct.  Arkansas,  1871,  1 
Dillon,  264,  Caldwell,  J. 

Worcester  vs.  Georgia,  U.  S.  Sup.  Ct.  1832,  6  Peters,  515,  Mar- 
shall, Ch.  J. 


SUPPLEMENT  TO 

INSULAR  CASES  APPENDIX. 


Decisions  of  Decembeu  2,  1901. 

After  the  foregoing  Appendix  was  completed  and  this  volume  was  in 
press,  the  Supreme  Court  decided  the  two  cases  known  as  the  Fourteen 
Diamond  Eings  [Pepke)  Case,  (see  pages  467,  etseq.,  of  this  Appendix, 
ante, )  involving  tlie  status  of  the  Philippine  Islands  as  to  tariff  laws,  and 
the  Second  Dooley  Case,  (see  pages  501,  etseq.,  of  this  Appendix,  ante,) 
involving  the  right  to  collect  duties  in  Porto  Rico  on  merchandise /rom 
other  ports  of  the  United  States.  As  it  was  too  late  to  include  those 
decisions  in  their  proper  places  in  the  foregoing  Appendix,  they  have 
been  added  as  a  supplement  thereto,  and  they  appear  in  full  in  the  fol- 
lowing pages. 

The  Fourteen  Diamond  Rings. 

In  error  to  the  District  Court  of  the  United  States  for  the  Northern 
District  of  Illinois.     No.  158.     October  term,  1901. 

[Decided  December  2,  1901.] 

For  appearances,  abstract  of  record,  briefs  and  arguments,  see  p.  467, 

ante,  of  this  appendix. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court  as  fol- 
lows: 

"  Emil  J.  Pepke,  a  citizen  of  the  United  States  and  of  the  State  of  North 
Dakota,  enlisted  in  the  First  Regiment  of  the  North  Dakota  United 
States  Volunteer  Infantry,  and  was  assigned  for  duty  with  his  regiment 
in  the  island  of  Luzon,  in  the  Philippine  Islands,  and  continued  in  the 
military  service  of  the  United  States  until  the  regiment  was  ordered  to 
return,  and,  on  arriving  at  San  Francisco,  was  discharged  September  25, 
1899. 

"  He  brought  with  him  from  Luzon  fourteen  diamond  rings,  which  he 
had  there  purchased,  or  acquired  through  a  loan,  subsequent  to  the 
ratification  of  the  treaty  of  peace  between  the  United  States  and  Spain, 
February  6, 1899,  and  the  proclamation  thereof  by  the  President  of  the 
United  States,  April  11,  1899. 

"  In  May,  1900,  in  Chicago,  these  rings  wore  seized  by  a  customs  officer 
as  having  been  imported  contrary  to  law,  without  entry,  or  declaration, 

5G3 


564  TKEATY-MAKING  POWER  OF  THE  U.  S. 

or  payinent  of  duties,  and  an  information  was  tiled  to  enforce  the  for- 
feiture thereof. 

"To  this  Pepke  tiled  a  plea  setting  up  the  facts,  and  claiming  that 
the  rings  were  not  subject  to  customs  duties;  the  plea  was  held  insuf- 
ticieut;  forfeiture  and  sale  were  decreed;  and  this  writ  of  error  was 
prosecuted. 

"The  tariff  act  of  July  24,  1897,  (30  Stat.  151,)  in  regulation  of  com- 
merce with  foreign  nations,  levied  duties  '  upon  all  articles  imported 
from  foreign  countries.' 

"  Were  these  rings,  acquired  by  this  soldier  after  the  ratification  of 
the  treaty  was  proclaimed,  when  brought  by  him  from  Luzon  to  Cali- 
fornia, on  his  return  with  his  regiment  to  be  discharged,  imported  from 
a  foreign  country  ? 

"This  question  has  already  been  answered  in  the  negative,  in  respect 
of  Porto  Rico  in  Be  Lima  vs.  Bidwell,  182  U.  S.  1,  and  unless  the  cases 
can  be  distinguished,  which  we  are  of  opinion  they  cannot  be  in  this 
particular,  that  decision  is  controlling. 

"The  Philippines,  like  Porto  Rico,  became,  by  virtue  of  the  treaty, 
ceded  conquered  territory  or  territory  ceded  by  way  of  indemnity.  The 
teri'itory  ceased  to  be  situated  as  Castine  was  when  occupied  by  the 
British  forces  in  the  war  of  1812,  or  as  Tampico  was  when  occupied  by  the 
troops  of  the  United  States  during  the  Mexican  war,  '  cases  of  tempo- 
rary possession  of  teriitory  by  lawful  and  regular  governments  at  war 
witli  the  country  of  which  the  territory  so  possessed  was  part.'  Tlmr- 
ington  vs.  Smith,  8  Wall.  10.  The  Philippines  were  not  simply  occupied 
but  acquired,  and  having  been  granted  and  delivered  to  the  United 
States,  by  their  former  master,  were  no  longer  under  the  sovereignty 
of  any  foreign  nation. 

"  In  Cross  vs.  Harrison,lG  How.  164, the  question  was  whether  goods  im- 
ported from  a  foreign  country  into  California  after  the  cession  were  sub- 
ject to  our  tariff  laws,  and  this  court  held  that  they  were. 

'  ^  In  De  Lima  \s.  Bidwell  the  question  was  whether  goods  imported  into 
New  York  from  Porto  Rico,  after  the  cession,  were  siibject  to  duties 
imposed  by  the  act  of  1897  on  '  articles  imported  from  foreign  coun- 
tries,' and  this  court  held  that  they  were  not.  That  act  regulated 
commerce  with  foreign  nations,  and  Porto  Rico  had  ceased  to  be  within 
that  category;  nor  could  territory  be  foreign  and  domestic  at  the  same 
time. 

"  Among  other  things  it  was  there  said :  '  The  theory  that  a  country 
remains  foreign  with  respect  to  the  tariff  laws  until  Congress  has  acted 
by  embracing  it  within  the  customs  union,  presupposes  that  a  country 
may  be  domestic  for  one  purpose  and  foreign  for  another.  It  may  un- 
doubtedly become  necessary  for  the  adequate  administration  of  a  do- 
mestic territory  to  pass  a  special  act  providing  the  proper  machinery  and 
oflBcers,  as  the  President  would  have  no  authority,  except  under  the 
war  power,  to  administer  it  himself;  but  no  act  is  necessary  to  make  it 
domestic  territory  if  once  it  has  been  ceded  to  the  United  States. 
.  .  .  Tills  theory  also  presupposes  that  teriitory  may  be  held  indefi- 
nitely by  the  United  States;  that  it  may  be  treated  in  every  particular, 


INSULAR  CASES  APPENDIX.  565 

Supplement. 

except  for  tariff  purposes,  as  domestic  territory;  that  laws  may  be  en- 
acted iind  enforced  by  officers  of  the  Uniced  States  sent  there  for  that 
purpose;  that  insurrections  m  ly  be  suppressed,  wars  carried  on,  rev- 
enues collected,  taxes  imposed;  in  short,  that  everything  may  be  done 
which  a  government  can  do  within  its  own  boundaries,  and  yet  that  the 
territory  may  still  remain  a  foreign  country.  That  this  state  of  things 
may  continue  for  years,  for  a  century  even,  but  that  until  Congress  en- 
acts otherwise,  it  still  remains  a  foreign  country.  To  hold  that  this 
can  be  done  as  matter  of  law  we  deem  to  be  pure  judicial  legislation. 
We  find  no  warrant  for  it  in  the  Constitution  or  in  the  powex-s  con- 
ferred upon  this  court.  It  is  true  the  nonaction  of  Congress  may  oc- 
casion a  temporary  inconvenience;  but  it  does  not  follow  that  cotirts  of 
justice  are  authorized  to  remedy  it  by  inverting  the  ordinary  meaning 
of  words.' 

"  No  reason  is  perceived  for  any  different  ruling  as  to  the  Philippines. 
By  the  third  article  of  the  treaty  Spain  ceded  to  the  United  States  'the 
archipelago  known  as  the  Philippine  Islands,'  and  the  United  States 
agreed  to  pay  to  Spain  tlie  sum  of  twenty  million  dollars  within  three 
months.  The  treaty  was  ratified;  Congress  appropriated  the  money;  the 
ratification  was  proclaimed.  The  treaty-making  power;  the  executive 
power;  the  legislative  power,  concurred  in  the  completion  of  the  trans- 
action. 

'•' The  Philippines  thereby  ceased,  in  the  language  of  the  treaty,  'to 
be  Spanish.'  Ceasing  to  be  Spanish,  they  ceased  to  be  foreign  country. 
They  came  under  the  complete  and  absolute  sovereignty  and  dominion 
of  the  United  States,  and  so  became  teri'itory  of  the  United  States  over 
which  civil  government  could  be  established.  The  result  was  the  same 
although  there  was  no  stipulation  that  the  native  inhabitants  should  be 
incorporated  into  the  body  politic,  and  none  securing  to  them  the  right 
to  choose  their  nationality.  Their  allegiance  became  due  to  the  United 
States  and  they  became  entitled  to  its  protection. 

"  But  it  is  said  that  the  case  of  the  Philippines  is  to  be  distinguished 
from  tliat  of  Porto  Rico  because  on  February  14,  1899,  after  the  ratifica- 
tion of  the  treaty,  the  Senate  resolved,  as  given  in  the  margin,*  that  it 
was  not  intended  to  incorporate  the  inhabitants  of  the  Philippines  into 
citizenship  of  the  United  States,  nor  to  permanently  annex  those  islands. 

''  We  need  not  consider  the  force  and  effect  of  a  resolution  of  this  sort, 
if  adopted  by  Congress,  not  like  that  of  April  20, 1898,  in  respect  of  Cuba, 


*  "  '  Resolved  hij  the  Senate  and  Ilointe  of  Representatives  of  the  United  States 
of  America  in  Congress  assembled,  That  by  the  ratification  of  tiie  treaty  of  peace 
with  Spain  it  is  not  intended  to  incorporate  the  inhabitants  of  the  Pliihppiue 
Islands  into  citizenship  of  the  United  States,  nor  is  it  intended  to  permanently 
annex  said  ishxnds  as  an  integral  part  of  tlio  territory  of  the  United  States ;  hut 
it  is  the  intention  of  the  United  States  to  establish  on  said  islands  a  government 
suitable  to  the  wants  and  conditions  of  the  iTihahitants  of  said  islands  to  prepare 
them  for  local  self-government,  and  in  duo  time  to  make  such  disposition  of  said 
islands  as  will  best  promote  the  interests  of  the  United  States  and  the  inhab- 
itants of  said  islands.'     Cong.  Rec.  55th  Cong.  3d  Sess.  vol.  32,  p.  1847." 


566  TREATY-MAKING  POWER  OF  THE  U.  S. 

preliminary  to  the  declaration  of  war,  but  after  title  had  passed  by  rati- 
fied cession.  It  is  enough  that  this  was  a  joint  i-esolution;  that  it  was 
adopted  by  tlie  Senate  by  a  vote  of  26  to  22,  not  two  thirds  of  a  quorum; 
and  that  it  is  absolutely  without  legal  siguificance  on  the  question  be- 
fore us.  The  meaning  of  the  treaty  ciuuot  be  controlled  by  subsequent 
explanations  of  some  of  those  wlio  m;iy  have  voted  to  nitify  it.  What 
view  the  House  miglit  have  taken  as  to  the  intention  of  the  Senate  in 
ratifying  the  treaty  we  are  not  informed,  nor  is  it  material;  and  if  any 
implication  from  the  action  referred  to  could  properly  be  indulged,  it 
would  seem  to  be  that  two  thirds  of  a  quorum  of  the  Senate  did  not 
consent  to  the  ratification  on  the  grounds  indicated. 

"It  is  further  contended  that  a  distinction  exists  in  that  while  com- 
plete possession  of  Porto  Kico  was  taken  by  the  United  States,  this  was 
not  so  as  to  the  Philippines,  because  of  the  armed  resistance  of  the  na- 
tive inhabitants  to  a  greater  or  less  extent. 

"  We  must  decline  to  assume  that  the  government  wishes  thus  to  dis- 
parage the  title  of  the  United  Slates,  or  to  place  itself  in  the  position 
of  waging  a  war  of  ci inquest. 

"The  sovereignty  of  Spain  over  the  Philippines  and  possession  under 
claim  of  title  had  existed  for  a  long  series  of  years  prior  to  the  war  with 
the  United  States.  The  fact  that  there  were  insurrections  against  her 
or  that  uncivilized  tribes  may  have  defied  her  will  did  not  affect  the 
validity  of  her  title.  She  granted  the  islands  to  the  United  States,  and 
the  grantee  in  accepting  them  took  nothing  less  than  the  whole  grant. 

"If  those  in  insurrection  against  Spain  continued  in  insurrection 
against  the  United  States,  the  legal  title  and  possession  of  the  latter  re- 
mained unaffected. 

"We  do  not  understand  that  it  is  claimed  that  in  carrying  on  the  pend- 
ing hostilities  the  government  is  seeking  to  subjugate  the  people  of  a 
foreign  country,  but,  on  the  contrary,  that  it  is  preserving  order  and 
suppressing  insurrection  in  territory  of  the  United  States.  It  follows 
that  the  possession  of  the  United  States  is  adequate  possession  under 
legal  title,  and  this  cannot  be  asserted  for  one  purpose  and  denied  for 
another.     We  dismiss  the  suggested  distinction  as  untenable. 

•^  But  it  is  sought  to  detract  from  the  weight  of  the  ruling  in  Be  Lima 
vs.  Bidwell  because  one  of  the  five  justices  concurring  in  the  judgment 
in  that  case  concurred  in  the  judgment  in  Boivnes  vs.  Bidwell,  182  U.  S. 
244. 

"  In  De  Lima  vs.  Bidwell,  Porto  Rico  was  held  not  to  be  a  foreign  coun- 
try after  the  cession,  and  that  a  prior  act  exclusively  applicable  to  for- 
eign countries  became  inapplicable. 

"  In  Doiones  vs.  Bidwell,  the  conclusion  of  a  majority  of  the  court  was 
that  an  act  of  Congress  levying  duties  on  goods  imported  from  Porto 
Rico  into  New  York,  not  in  conformity  with  the  provisions  of  the  Con- 
stitution in  respect  to  the  imposition  of  duties,  imposts  and  excises,  was 
valid.  Four  of  the  members  of  the  court  dissented  from  and  five  con- 
curred, though  not  on  the  same  grounds,  in  this  conclusion.  The  justice 
who  delivered  the  opinion  in  De  Lima's  case  was  one  of  the  majority, 
and  was  of  opinion  that  although  by  the  cession  Porto  Rico  ceased  to 


INSULAR  CASES  APPENDIX.  567 

Supplement, 
be  a  foreign  country,  and  became  a  territory  of  the  United  States  and 
domestic,  yet  that  it  was  merely  'appurtenant'  territory,  and  'not  a 
part  of  the  United  States  within  the  revenue  clauses  of  the  Constitution.' 

"  Tliis  view  placed  the  territory,  though  not  foreign,  outside  of  the  re- 
strictions applicable  to  interstate  commerce,  and  treated  the  power  of 
Congress,  when  affirmatively  exercised  over  a  territory,  situated  as  sup- 
posed, as  uncontrolled  by  the  provisions  of  the  Constitution  in  respect 
of  national  taxation.  The  distinction  was  drawn  between  a  special  act 
in  respect  of  the  particular  country,  and  a  general  and  prior  act  only 
applicable  to  countries  foreign  to  ours  in  every  sense.  The  latter  was 
obliged  to  conform  to  the  rule  of  uniformity,  which  was  wholly  disre- 
garded in  the  former. 

"  The  ruling  in  the  case  of  Be  Lima  remained  unaffected,  and  controls 
that  under  consideration.  And  this  is  so  notwithstanding  four  mem- 
bers of  the  majority  in  the  Be  Lima  case  were  of  opinion  that  Porto 
Kico  did  not  become  by  the  cession  subjected  to  the  exercise  of  govern- 
mental power  in  the  levy  of  duties  unrestricted  by  constitutional  limi- 
tati(ms. 

"  Decree  reversed  and  cause  remanded  with  directions  to  quash  the  in- 
formation." 

"Mr.  Justice  Brown  delivered  a  concurring  opinion  as  follows: 

"I  concur  in  the  conclusion  of  the  court  in  this  case,  and  in  the  rea- 
sons given  therefor  in  the  opinion  of  the  Chief  Justice. 

"  The  case  is  distinguishable  from  De  Lima  vs.  Bidwell  in  but  one  par- 
ticular, viz.,  the  Senate  resolution  of  February  6,  1899.  With  regard  to 
this,  I  would  say  that  in  my  view  the  case  would  not  be  essentially 
different  if  this  resolution  had  been  adopted  by  a  unanimous  vote  of 
the  Senate.  To  be  efficacious  such  resolution  must  be  considered  either 
(1)  as  an  amendment  to  the  treaty,  or  (2)  as  a  legislative  act  qualifying 
or  modifying  the  treaty.     It  is  neither. 

"It  cannot  be  regarded  as  part  of  the  treaty,  since  it  received  neither 
the  approval  of  the  President  nor  the  consent  of  the  other  contracting 
power.  A  treaty  in  its  legal  sense  is  defined  by  Bouvier  as  'a  compact 
made  between  two  or  more  independent  nations  with  a  view  to  the 
public  welfare,'  (2  Law  Die.  1136,)  and  by  Webster  as  'an  agreement, 
league  or  contract  between  two  or  more  nations  or  sovereigns,  formally 
signed  by  commissioners  properly  authorized,  and  solemnly  ratified  by 
the  sovereigns  or  the  supreme  power  of  each  state.'  In  its  essence 
it  is  a  contract.  It  differs  from  an  ordinary  contract  only  in  being 
an  agreement  between  independent  states  instead  of  private  parties. 
{Foster  vs.  Neilson,  2  Pet.  2o3,  314;  Head  Money  Cases,  112  U.  S.  .')80.) 
By  the  Constitution,  (art.  2,  sec.  2,)  the  President  'shall  have  power, 
by  and  with  the  advice  and  consent  of  the  Senate,  to  make  treaties, 
provided  two-thirds  of  the  Senators  present  concur.'  Obviously  the 
treaty  must  contain  the  whole  contract  between  the  parties,  and  the 
power  of  the  Senate  is  limited  to  a  ratification  of  sucii  terms  as  iiave 
already  been  agreed  upon  between  the  President,  acting  for  the  United 
States,  and  the  commissioners  of  the  other  contracting  powei*.     The 


568  TKEATY-MAKrX(5  I'OWER  OF  THE  U.  S. 

Senate  has  uo  right  to  ratify  the  treaty  and  introduce  new  terms  into 
it,  which  shall  bo  obligatory  upon  the  other  power,  although  it  may 
refuse  its  ratification,  or  make  such  ralilication  couditional  upon  the 
adoption  of  amendments  to  the  treaty.  If,  for  instance,  the  treaty  with 
Spain  had  contained  a  provision  instating  the  inhabitants  of  the  Philip- 
pines as  citizens  of  the  United  States,  the  Senate  might  have  refused  to 
ratify  it  until  this  provision  was  stricken  out.  But  it  could  not,  in  my 
opinion,  ratify  the  treaty  and  then  adopt  a  resolution  declaring  it  not 
to  be  its  intention  to  admit  the  inhabitants  of  the  Philippine  Islands  to 
the  privileges  of  citizensiiip  of  the  United  States.  Such  resolution  would 
be  inoperative  as  an  amendment  to  the  treaty,  since  it  had  not  received 
the  assent  of  the  President  or  the  Spanish  commissioners. 

"Allusion  was  made  to  this  question  in  the  New  York  Indians  vs.  United 
States,  (170  U.  S.  1,  21,)  wherein  it  appeared  that,  when  a  treaty  with 
certain  Indian  tribes  was  laid  before  the  Senate  for  ratification,  several 
articles  were  stricken  out,  several  others  amended,  a  new  article  added, 
and  a  proviso  adopted  that  the  treaty  should  have  no  force  or  effect 
whatever  until  the  amendment  had  been  submitted  to  the  tribes,  and 
they  had  given  their  free  and  voluntary  assent  thereto.  This  resolu- 
tion, however,  was  not  found  in  the  original  or  in  the  published  copy 
of  the  treaty,  or  in  the  proclamation  of  the  President,  which  contained 
the  treaty  without  the  amendments.  With  reference  to  this  the  court 
observed:  'The  power  to  make  treaties  is  vested  by  the  Constitution 
in  the  President  and  the  Senate,  and,  while  this  proviso  was  adopted 
by  the  Senate,  there  was  no  evidence  that  it  ever  received  the  sanction 
or  approval  of  the  President,  It  cannot  be  considered  as  a  legislative 
act,  since  the  power  to  legislate  is  vested  in  the  President,  Senate  and 
Hotise  of  Representatives.  There  is  something,  too,  which  shocks  the 
conscience  in  the  idea  that  a  treaty  can  be  put  forth  as  embodying  the 
terms  of  an  arrangement  with  a  foreign  power  or  an  Indian  tribe,  a 
material  provision  of  which  is  unknown  to  one  of  the  contracting 
parties,  and  is  kept  in  the  background  to  be  used  by  the  other  only 
when  the  exigencies  of  a  particular  case  may  demand  it.  ■  The  proviso 
appears  never  to  have  been  called  to  the  attention  of  the  tribes,  who 
would  naturally  assume  that  the  treaty  embodied  in  the  Presidential 
proclamation  contained  all  the  terms  of  the  arrangement.' 

"In  short,  it  seems  to  me  entirely  clear  that  this  resolution  cannot  be 
considered  a  part  of  the  treaty. 

"  I  think  it  equally  clear  that  it  cannot  be  treated  as  a  legislative  act, 
though  it  may  be  conceded  that  under  the  decisions  of  this  court  Con- 
gress has  the  power  to  disregard  or  modify  a  treaty  with  a  foreign  state. 
This  was  not  done. 

''  The  resolution  in  question  was  introduced  as  a  joint  resolution,  but 
it  never  received  the  assent  rf  the  House  of  Representatives  or  the 
signattire  of  the  President.  While  a  joint  resolution,  when  approved 
by  the  President,  or,  being  disapproved,  is  passed  by  two-thirds  of  each 
house,  has  the  effect  of  a  law,  (Const,  art.  1,  sec.  7,)  no  such  effect  can 
be  given  to  a  resolution  of  either  house  acting  independently  of  the 


INSULAR  CASES  ATPENDlX.  569 

Supplement, 
other.     Indeed,  the  above  clause  expressly  requires  coucurreut  action 
upon  a  resolution  '  before  the  same  sh;dl  take  effect.' 

"This  question  was  considered  by  Mr.  Attorney  General  Gushing  in 
his  opinion  on  certain  Kesolutions  of  Congress,  (G  Ops.  Atty.  Gen.  080,) 
in  which  he  held  that  while  joint  resolutions  of  Congress  are  not  dis- 
tinguishable from  bills,  and  have  the  effect  of  law,  separate  resolutions 
of  either  house  of  Congress,  except  in  matters  appertaining  to  their 
own  parliamentary  rights,  have  no  legal  effect  to  constrain  the  action 
of  the  President  or  Heads  of  Departments.  The  whole  subject  is  there 
elaborately  discussed. 

■'In  any  view  taken  of  this  resolution  it  appears  to  me  that  it  can  be 
considered  only  as  expressing  the  individual  views  of  the  Senators 
voting  upon  it. 

"I  have  no  doubt  the  treaty  might  have  provided,  as  did  the  act  of 
Congress  annexing  Hawaii,  that  the  existing  customs  relations  between 
the  Spanish  possessions  ceded  by  the  treaty  and  the  United  States 
should  remain  unchanged  until  legislation  had  been  had  upon  the  sub- 
ject; but  in  the  absence  of  such  provision  the  case  is  clearly  controlled 
by  that  of  De  Lima  vs.  Bklwell.''^ 

Mr.  Justice  Gray,  Mr.  Justice  Shiras,  Mr.  Justice  White  and  Mr. 
Justice  McKenna  dissented,  for  the  reasons  stated  in  their  opinions  in 
De  Lima  vs.  Bidwell,  182  U.  S.  1,  200-220,  in  Dooleij  vs.  United  States, 
182  U.  S.  222,  236-243,  and  in  Duwnesws.  Bidwell,  182  U.  S.  244,  287-347. 

Henry  W.  Dooley  et  al..  Plaintiffs  in  Error,  vs.  The  United 

States. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York  for  abstract  of  recoi'd,  appearance,  briefs  and 
cases  cited  see  p.  501  of  this  Appendix,  ante.  No.  207,  October  term, 
1901. 

[Decided  December  2,  1901.] 

This  was  an  action  begun  in  the  Circuit  Court  as  a  Court  of  Claims  by 
the  firm  of  Dooley,  Smith  &  Co.,  to  recover  duties  exacted  of  tliem  and 
paid  under  protest  to  the  collector  of  the  port  of  San  Juan,  Porto  Rico, 
upon  merchandise  imported  into  that  port  from  the  port  of  New  York 
after  May  1,  1900,  and  since  the  Foraker  act.  This  act  requires  all  mer- 
chandise 'coming  into  Porto  Rico  from  the  United  States'  to  be  'en- 
tered at  the  several  ports  of  entry  upon  payment  of  fifteen  per  centum 
of  the  duties  which  are  required  to  be  levied,  collected  and  paid  upon 
like  articles  of  merchandise  imported  from  foreign  countries.' 

A  demurrer  was  interposed  by  tlie  District  Attorney  upon  the  ground 
that  the  court  had  no  jurisdiction  of  tiie  subject  of  the  action,  and  also 
that  the  complaint  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action.  The  demurrer  to  the  complaint  for  insuiiiciency  was  sustained, 
and  the  petition  dismissed. 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court  as  follows: 

"This  case  raises  the  question  of  the  constitutionality  of  the  Foraker 
act,  so  far  as  it  fixes  the  duties  to  be  paid  upon  merchandise  imported 


570  TREATY-MAKING  POWER  OP  THT<:  V.  S. 

into  Porto  Rico  from  the  port  of  New  York.  Tlie  validity  of  this  re- 
quiremeut  is  attacked  upon  tlie  f^round  of  its  violation  of  that  clause  of 
the  Constitution  (Art.  1,  sec.  9)  declaring  that  '  no  tax  or  duty  shall  be 
laid  on  articles  exported  from  any  State.' 

"  While  the  words  '  import '  and  '  export'  are  sometimes  used  to  de- 
note goods  passing  from  one  State  to  another,  the  word  '  import,'  in 
connection  with  the  provisicm  of  the  Constitution  that  '  no  State  shall 
levy  any  imposts  or  duties  on  imports  or  exports,'  was  held  in  Wood- 
ruff vs.  Parham,  (8  Wall.  123,)  to  apply  only  to  articles  imported  from 
foreign  countries  into  tlie  United  States. 

"  That  w^as  an  action  to  recover  a  tax  imposed  by  the  city  of  Mobile  for 
municipal  purposes,  upon  sales  at  auction.  Defendants,  who  were  auc- 
tioneers, received  in  the  course  of  their  business  for  themselves,  or  as 
consignees  or  agents  for  others,  large  amounts  of  goods  and  merchandise, 
the  products  of  other  States  than  Alabama,  and  sold  the  same  in  Mobile 
to  purchasers,  in  unbroken  and  original  packages.  The  Supreme  Court 
of  Alabama  decided  the  case  in  favor  of  the  tax,  and  the  case  came  here 
for  review. 

"  The  question,  as  stated  by  Mr.  Justice  Miller,  was  '  whether  merchan- 
dise brought  from  other  States  and  sold,  under  the  circumstances  stated, 
comes  within  the  prohibition  of  the  Federal  Constitution,  that  no  State 
shall,  without  the  consent  of  Congress,  levy  any  imposts  or  duties  on  im- 
ports or  exports.'  Defendants  relied  largely  upon  a  dictum  in  Brown  vs. 
Maryland,  (12  Wheat.  419,)  to  the  effect  that  the  principles  laid  down  in 
that  case  as  to  the  non- taxability  of  imports  from  foreign  countries  might 
perhaps  apply  equally  to  importations  from  a  sister  State. 

"  In  discussing  this  question,  and  particularly  of  the  power  of  Congress 
tolevy  and  collect  taxes,  duties,  imposts  and  excises,  Mr.  Justice  Miller 
observed:  'Is  the  word,  '  impost,'  here  used,  intended  to  c(mfer  upon 
Congress  a  distinct  power  to  levy  a  tax  upon  all  goods  or  merchandise 
carried  from  one  State  into  another?  Or  is  the  power  limited  to  duties 
on  foreign  imports?  If  the  former  be  intended,  then  the  power  conferred 
is  curiously  rendered  nugatory  by  the  subsequent  clause  of  the  ninth  sec- 
tion, which  declares  that  no  tax  shall  be  laid  on  articles  exported  from 
any  State,  for  no  article  can  be  imported  from  one  State  into  another 
which  is  not  at  the  same  time  exported  from  the  former.  But  if  we 
give  to  the  word  '  imposts  '  as  used  in  the  first  mentioned  clause,  the 
definition  of  Chief  Justice  Marshall,  and  to  the  word  'export'  the  cor- 
responding idea  of  something  carried  out  of  the  United  States,  we  have, 
in  the  power  to  lay  duties  on  imports  from  abroad,  and  the  prohibition 
to  lay  such  duties  on  exports  to  other  countries  the  power  and  its  limita- 
tions concerning  imposts.' 

"  '  It  is  not  too  much  to  say  that,  so  far  as  our  research  has  extended, 
neither  the  word  'export,'  '  import'  or  'impost'  is  to  be  found  in  the 
discussion  on  this  subject,  as  they  have  come  down  to  us  from  tliat  time, 
in  reference  to  any  other  than  foreign  commerce,  without  some  special 
form  of  words  to  show  that  foreign  commerce  is  not  meant.  Whether 
we  look,  then,  to  the  terms  of  the  clause  of  the  Constitution  in  questi<m, 
or  to  its  relation  to  other  parts  of  that  instrument,  or  to  the  history  of 


INSULAR  CASES  APPENDIX.  571 

Supplement, 
its  formation  and  adoption,  or  to  the  comments  of  the  eminent  men  wlio 
took  part  in  tliose  transactions,  we  are  forced  to  the  conclusion  that  no 
intention  existed  to  prohibit,  by  this  clause,'  (that  no  State  shall,  with- 
out the  consent  of  Congress,  levy  any  impost  or  duty  upon  any  export 
or  import,)  '  the  right  of  one  State  to  tax  articles  brought  into  it  from 
another.'  This  definition  of  the  word  impost  was  afterwards  approved 
in  Brown  vs.  Houston,  (114  U.  S.  623).  See  also  Fairbank  vs.  United 
States  (181  U.  S.  283). 

"  It  follows,  and  is  the  logical  sequence  of  the  case  of  Woodruff  vs.  Par- 
ham,  that  the  word  'export'  should  be  given  a  correlative  meaning, 
and  applied  only  to  goods  exported  to  a  foreign  country.  (Muller  vs. 
Baldwin,  L.  R.  9  Q.  B.  457.)  If,  then,  Porto  Rico  be  no  longer  a  foreign 
country  under  the  Dingley  act,  as  was  held  by  a  majority  of  this  court 
in  De  Lima  vs.  Bidwell,  (182  U.  S.  1,)  and  Dooley  vs.  United  States,  (182 
U.  S.  222,)  we  find  it  impossible  to  say  that  goods  carried  from  New 
York  to  Porto  Rico  can  be  considered  as  'exported'  from  New  York 
within  the  meaning  of  that  clause  of  the  Constitution.  If  they  are 
neither  exports  nor  imports,  they  are  still  liable  to  be  taxed  by  Con- 
gress under  the  ample  and  comprehensive  authority  conferred  by  the 
Constitution  'to  lay  and  collect  taxes,  duties,  imposts  and  excises.' 
(Art.  1,  sec.  8.) 

"In  another  view,  however,  the  case  presented  by  the  record  is, 
whether  a  duty  laid  by  Congress  upon  goods  arriving  at  Porto  Rico  from 
New  York  is  a  duty  upon  an  export  from  New  York,  or  upon  an  import  to 
Porto  Rico.  The  fact  that  the  duty  is  exacted  upon  the  arrival  of  the 
goods  at  San  Juan  certainly  creates  a  presumption  in  favor  of  the  latter 
theory.  At  the  same  time  it  is  possible  that  it  may  also  be  a  duty  upon 
an  export.  The  mere  fact  that  the  duty  is  not  laid  at  the  port  of  depart- 
ure is  by  no  means  decisive  against  its  being  such.  It  is  too  clear  for 
argument  that  if  vessels  bound  for  a  foreign  country  were  compelled  to 
stop  at  an  intermediate  port  and  pay  into  the  Treasury  of  the  United 
States  a  duty  upon  their  cargoes,  such  duty  would  be  a  tax  upon  an 
export,  and  the  place  of  its  exaction  would  be  of  little  significance.  The 
manner  in  which  and  the  place  at  which  the  tax  is  levied  are  of  minor 
consequence.  Thus  in  Brown  vs.  Maryland,  (12  Wheat.  419, )  it  was  held 
that  an  act  of  a  State  legislature  requiring  importers  of  foreign  goods  to 
take  out  a  license  was  a  violation  of  the  Constitution  declaring  that  no 
State  shall,  without  the  consent  of  Congress,  lay  any  impost  or  duty  on 
imports  or  exports;  and  in  the  recent  case  of  Fairbank  vn.  United  States, 
(181  TJ.  S.  283,)  we  held  that  a  discriminating  stamp  tax  u])on  bills  of 
lading,  covering  goods  to  be  carried  to  a  foreign  country,  was  a  tax  upon 
exports  within  the  same  provision  of  the  Constitution. 

"  One  thing,  however,  is  entirely  clear.  The  tax  in  question  was  im- 
posed upon  goods  imported  into  Porto  Rico,  since  it  was  exacted  by  the 
collector  of  the  port  of  San  Juan  after  the  arrival  of  the  goods  within 
the  limits  of  that  port.  From  this  moment  the  duties  became  payable 
as  upon  imported  merchandise.  (  United  States  vs.  Howell,  5  Cranch, 
368;  Arnold  vs.  United  States,  9  Cranch,  104;  Meredith  vs.  United  States, 
13  Pet.  486.)     Now  while  an  import  into  one  port  almost  necessarily  in- 


572  TREATY-MAKTKG  POWER  OF  THE  U.  S. 

Volvos  a  prior  export  from  another,  still,  in  determining  the  character 
of  the  tax  imposed,  it  is  important  to  consider  whether  the  duty  be  laid 
for  the  purpose  of  adding  to  the  revenues  of  the  country  from  which 
the  expt)rt  takes  place,  or  for  the  benefit  of  the  territory  into  which  they 
are  iuiported.  By  the  tliii'd  section  of  the  Foraker  act  imposing  duties 
upon  merchandise  coming  into  Porto  Rico  from  the  United  States,  it 
is  declared  that  'whenever  the  legislative  assembly  of  Porto  Rico  shall 
have  enacted  and  put  into  operation  a  system  of  local  taxation  to  meet 
the  necessities  of  the  government  of  Porto  Rico,  by  this  act  established, 
and  shall  by  resolution  duly  passed  so  notify  the  President,  he  shall 
make  proclamaiion  thereof,  and  thereupon  all  tariff  duties  on  merchan- 
dise and  articles  going  into  Porto  Rico  from  the  United  States  or  com- 
ing into  the  United  States  from  Porto  Rico  shall  cease,  and  from  and 
after  such  date  all  such  merchandise  and  articles  shall  be  entered  at  the 
several  ports  of  entry  free  of  duty.'  And  by  section  four,  'the  duties 
and  taxes  collected  in  Porto  Rico  in  pursuance  of  this  act,  less  the  cost 
of  collecting  the  same,  and  the  gross  amount  of  all  collections  and  taxes 
in  the  United  States  upon  articles  of  merchandise  coming  from  Porto 
Rico,  shall  not  be  covered  into  the  general  fund  of  the  Treasury,  but 
shall  be  held  as  a  separate  fund,  and  shall  be  placed  at  the  disposal  of 
the  President  to  be  used  for  the  government  and  benefit  of  Porto  Rico 
until  the  government  of  Porto  Rico,  herein  provided  for,  shall  have  been 
organized,  when  all  moneys  theretofore  collected  under  the  provisions 
hereof,  then  unexpended,  shall  be  transferred  to  the  local  treasury  of 
Porto  Rico.' 

"  Now,  there  can  be  no  doubt  whatever  that,  if  the  legislative  assembly 
of  Porto  Rico  should,  with  the  consent  of  Congress,  lay  a  tax  upon  goods 
arriving  from  ports  of  the  United  States,  such  tax,  if  legally  imposed, 
would  be  a  duty  upon  imports  to  Porto  Bico,  and  not  upon  exports  from 
the  United  States;  and  we  think  the  same  result  must  follow,  if  the  duty 
be  laid  by  Congress  in  the  interest  and  for  the  benefit  of  Porto  Rico. 
The  truth  is,  that,  in  imposing  the  duty  as  a  temporary  expedient,  with 
a  proviso  that  it  may  be  abolished  by  the  legislative  assembly  of  Porto 
Rico  at  its  will,  Congress  thereby  shows  that  it  is  undertaking  to  legis- 
late for  the  island  for  the  time  being  and  only  until  the  local  government 
is  put  into  operation.  The  mei-e  fact  that  the  duty  passes  through  the 
hands  of  the  revenue  officers  of  the  United  States  is  immaterial,  in  view 
of  the  requirement  that  it  shall  not  be  covered  into  the  general  fund  of 
the  Treasury,  but  be  held  as  a  separate  fund  for  the  government  and 
benefit  of  Porto  Rico. 

"The  action  is  really  correlative  to  that  of  Bownes  vs.  Bidwell,  (182 
U.  S.  244, )  in  which  we  held  that  Congress  could  lawfully  impose  a  duty 
upon  imports  from  Porto  Rico,  notwithstanding  the  provision  of  the  Con- 
stitution that  all  duties,  imposts  and  excises  shall  be  uniform  through- 
out tlie  United  States.  It  is  true  that  this  conclusion  was  reached  by  a 
majority  of  the  court  by  different  processes  of  reasoning,  but  it  is  none 
the  less  true  that  in  the  conclusion  that  certain  provisions  of  the  Con- 
stitution did  apply  to  Porto  Rico,  and  that  certain  others  did  not,  there 
was  no  difference  of  opinion. 


mSULAR  CASES  APPENDIX.  573 

Supplement. 

"It  is  not  intended  by  this  opinion  to  intimate  that  Congi'ess  may  lay 
an  export  tax  upon  mercliandise  carried  from  one  State  to  another. 
Wliile  this  does  not  seem  to  be  forbidden  by  the  express  words  of  the 
Constitution,  it  would  be  extremely  difficult,  if  not  impossible,  to  lay 
such  a  tax  without  a  violation  of  the  first  paragraph  of  Art.  1,  sec.  8, 
that  'all  duties,  imposts  and  excises  shall  be  uniform  throughout  the 
United  States.'  There  is  a  wide  difference  between  the  full  and  para- 
mount power  of  Congress  in  legislating  for  a  territory  in  the  condition 
of  Porto  Rico  and  its  power  with  respect  to  the  States,  which  is  merely 
incidental  to  its  right  to  regulate  interstate  commerce.  The  question, 
however,  is  not  involved  in  this  case,  aud  we  do  not  desire  to  express 
an  opinion  upon  it. 

"These  duties  were  properly  collected,  and  the  action  of  the  Circuit 
Court  in  sustaining  the  demurrer  to  the  complaint  was  correct,  aud  it 
is  therefore 

^^  Affirmed.'''' 

Mr.  Justice  White  delivered  a  concurring  opinion  as  follows: 

"  Whilst  agreeing  to  the  judgment  of  affirmance  and  in  substance  con- 
curring in  the  opinion  of  the  court  just  announced,  by  which  the  affirm- 
ance is  sustained,  I  propose  to  summarize  in  my  own  language  the 
reasoning  which  the  opinion  embodies  as  it  is  by  me  understood. 

"  In  my  judgment  the  opinion  of  the  court  in  the  cases  of  iJe  Lima  vs. 
Bidwell,  (182  U.  S.  1,)  and  Doole//  vs.  United  States,  (182  U.  S.  222,)  de- 
cided in  the  last  term,  and  that  just  announced  in  the  case  of  The  Dia- 
vio.id  Rings,  as  well  as  the  opinions  of  the  majoi'ity  of  the  members  of 
the  court  in  i)oiunes  vs.  Bidwell,  (182  U.  S.  244,)  also  decided  at  the  last 
term,  when  considered  in  connection  with  the  previous  adjudications 
of  this  court,  are  conclusive  in  favor  of  the  affirmance  of  the  judgment 
in  this  cause.  The  question  is,  whether  a  tax  imposed  by  authority  of 
the  act  of  April  12,  1900,  (31  Stat.  77,)  in  Porto  Rico,  on  merchandise 
coming  into  that  island  from  the  United  States,  is  repugnant  to  clause 
5,  section  9,  of  article  I  of  the  Constitution  of  the  United  States,  which 
provides  that  '  no  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  State.'  Is  the  tax  here  assailed  an  export  tax  within  the  meaning 
of  the  Constitution?  If  it  is,  the  judgment  sustaining  it  should  be  re- 
versed; if  it  is  not,  affirmance  is  required. 

"  In  Woodniff  vs.  Parham,  (1870)  8  Wall.  123,  the  validity  of  a  tax  on 
auction  sales  levied  by  the  city  of  Mobile  pursuant  to  authority  con- 
ferred by  the  laws  of  the  State  of  Alabama  was  called  in  question.  One 
of  the  contentions  was  that  as  the  tax  was  on  sales  at  auction  of  goods 
in  the  original  packages  brought  into  the  State  of  Alabama  from  other 
States,  it  was  repugnant  to  that  clause  of  section  9  of  article  I  of  the 
Constitution,  which  forbids  any  State,  without  the  consent  of  Congress, 
fi-om  laying  imposts  or  duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspection  laws.  In  approach- 
ing the  consideration  of  the  question  thus  presented,  the  court,  in  its 
opinion,  which  was  announced  by  Mr.  Justice  Miller,  said  (p.  131): 

" '  The  words  imposts,  imports  aud  exports  are  frequently  used  in  the 


574  TREATY-MAKING  POWER  OF  THE  U.  S. 

Constitution.  They  have  a  uecessary  co-relation,  and  when  we  have  a 
clear  idea  of  what  either  word  means  in  any  particular  connection  in 
which  it  may  be  found,  we  have  one  of  the  most  satisfactory  tests  of 
its  definition  in  other  parts  of  the  same  instrument.  .  .  .  Leavinp^, 
then,  for  a  moment,  tlie  clause  of  the  Constitution  under  considera- 
tion,' (forbidding  a  State  to  lay  an  import  or  an  export  tax,)  '  we  find 
the  first  use  of  these  co-relative  terms  in  tliat  clause  of  the  eighth  sec- 
tion of  the  first  article  which  begins  the  enumeration  of  the  powers 
confided  to  Congress,  '  that  Congress  shall  have  power  to  levy  and  col- 
lect taxes,  duties,  imposts  and  excises.  .  .  .  But  all  duties,  imposts 
and  excises  shall  be  uniform  throughout  the  United  States.'  Is  the 
word  impost,  here  used,  intended  to  confer  upon  Congress  a  distinct 
power  to  levy  a  tax  upon  all  goods  or  merchandise  carried  from  one 
State  into  another?  or  is  the  power  limited  to  duties  on  foreign  im- 
ports ?  If  the  former  be  intended,  then  the  power  conferred  is  curiously 
rendered  nugatory  by  the  subsequent  clause  of  the  ninth  section,  which 
declares  that  no  tax  shall  be  laid  on  articles  exported  from  any  State, 
for  no  article  can  be  imported  from  one  State  into  another  which  is  not, 
at  the  same  time,  exported  from  the  former.  But  if  we  give  to  the  word 
imposts,  as  used  in  the  first  mentioned  clause,  the  definition  of  Chief 
Justice  Marshall,  and  to  the  word  export  the  corresponding  idea  of 
something  carried  out  of  the  United  States,  we  have,  in  the  power  to 
lay  duties  on  imports  from  abroad  and  the  prohibition  to  lay  such  duties 
ou  exports  to  other  countries,  the  power  and  its  limitation  concerning 
imposts.'  , 

"  The  opinion  then  proceeded  to  elaborately  consider  the  meaning  of 
the  words  imports,  exports  and  imposts  in  the  Constitution,  with  ref- 
erence to  the  powers  of  Congress,  and  concluded  that  they  related  only 
to  the  bringing  in  of  goods  from  a  country  foreign  to  the  United  States 
or  the  taking  out  of  goods  from  the  United  States  to  such  a  country. 
From  this  conclusion  the  deduction  was  drawn  that  the  words  imports 
and  exports,  when  used  in  the  Constitution  with  reference  to  the  power 
of  the  several  States,  had  a  similar  meaning,  and  hence  the  tax  levied 
by  the  city  of  Mobile  was  decided  not  to  be  repugnant  to  the  clause  of 
the  Constitution  heretofore  referred  to,  prohibiting  a  State  '  from  lay- 
ing imposts  or  duties  on  imports  or  exports.'  In  the  course  of  the 
opinion  an  intimation  of  Mr.  Chief  Justice  Marshall  in  Broion  vs.  Mary- 
land, that  the  words  imports  and  exports  might  relate  to  the  movement 
of  goods  between  the  States,  was  referred  to,  and  it  was  expressly  said 
that  this  was  a  mere  suggestion  on  the  part  of  the  Chief  Justice,  not 
involved  in  the  cause,  and  not  therefore  decided.  So,  also,  the  atten- 
tion of  the  court  was  directed  to  the  case  of  Almy  vs.  California,  (1860) 
24  How.  109.  That  case  involved  the  validity  of  a  stamp  tax  imposed 
in  California  on  all  bills  of  lading  for  the  shipment  of  gold  from  Cali- 
fornia to  a  point  without  the  State.  The  particular  bill  of  lading  which 
was  in  question  was  for  the  shipment  of  gold  from  California  to  New 
York.  It  was  held  that  this  stamp  tax  was  at  least  an  indirect  burden 
on  exports,  and  hence  was  void,  because  an  export  tax  within  the  mean- 
ing of  the  Constitution,     In  the  opinion  in  Woodntff  \s.  Parham  it  was 


mSULAR  CASES  APPENDIX.  575 

Supplement, 
expressly  decided  that  although  the  conclusion  in  Aliny  vs.  California, 
that  the  tax  was  void,  wiis  sustained  by  the  commerce  clause  of  the 
Constitution  which  had  been  referred  to  in  the  argument  of  that  case, 
it  had  been  erroneously  held  that  import  or  export  within  the  consti- 
tutional sense  of  the  words  related  to  the  movement  of  goods  between 
the  States  and  not  exclusively  to  foreign  commerce.  To  the  extent 
therefore  that  Aliny  vs.  California  held  or  intimated  that  an  export  or 
import  tax  within  the  meaning  of  the  Constitution  embraced  anything 
but  foreign  commerce,  it  was  expressly  overruled. 

"  In  Broion  vs.  Houston,  (114  U.  S.  622,)  decided  in  1884,  fourteen  years 
after  the  decision  in  Woodruff  vs.  Parharn,  the  question  which  arose  in 
the  latter  case  was  again  presented.  A  tax  levied  by  the  State  of 
Louisiana  on  certain  coal  which  had  come  down  the  Ohio  River  was 
assailed  on  the  ground  that  it  amounted  to  both  an  export  and  import 
tax  within  the  meaning  of  the  constitution.  The  court,  speaking 
through  Mr.  Justice  Bradley,  said  (p.  628): 

"  '  It  was  decided  by  this  court  in  the  case  of  Woodruff  vs.  Parham,  (8 
Wall.  123,)  that  the  term  imports  as  used  in  that  clause  of  the  Consti- 
tution which  declares  that  '  no  State  shall  without  the  consent  of  Con- 
gress lay  any  imposts  or  duties  on  imports  or  exports,'  does  not  refer  to 
articles  carried  from  one  State  into  another,  but  only  to  articles  imported 
from  foreign  countries  into  the  United  States.' 

"The  opinion,  after  stating  the  facts  which  were  presented  in  Wood- 
ruff vs.  Parham,  and  the  contention  which  was  in  that  case  based  upon 
them,  said  (pp.  628,  6^9): 

"  '  This  court,  however,  after  an  elaborate  examination  of  the  ques- 
tion, held  that  the  terms  '  imports  '  and  '  exports'  in  the  clause  under 
consideration  had  reference  to  goods  brought  from  or  carried  to  foreign 
countries  alone  and  not  to  goods  transported  from  one  State  to  the 
other.  It  is  unnecessary,  therefore,  to  consider  further  the  question 
raised  by  the  plaintiffs  in  error  under  their  assignment  of  error  so  far 
as  it  is  based  on  the  assumption  that  the  tax  complained  of  was  an  im- 
post or  duty  on  imports.' 

"  Thus  treating  the  meaning  of  the  words  imports  and  exports  as 
having  been  conclusively  determined  by  Woodruff  vs.  Parham,  the  court 
passed  to  the  consideration  of  the  contention  that  the  tax  levied  in  the 
State  of  Louisiana  was  an  export  tax  within  the  meaning  of  the  Consti- 
tution, because  some  of  the  coal  was  intended  for  export  to  a  foreign 
country,  or  had  been,  as  it  was  claimed,  in  part  actually  exported  to 
such  country. 

"  Again,  in  Fairbank  vs.  United  States,  (1900)  181  U.  S.  283,  the  court 
was  called  upon  to  determine  whether  the  requirement  in  an  act  of 
Congress  that  a  revenue  stamp  be  affixed  to  every  bill  of  lading  for 
goods  shipped  to  a  foreign  country  was  a  tax  on  exports.  In  the  course 
of  the  opinion,  in  considering  tlie  question,  the  court  referred  to  Aliny 
vs.  California,  supra,  as  authority  for  tiie  proposition  that  a  tax  on  the 
bill  of  lading  was  a  tax  on  the  movement  of  the  goods  which  the  bill 
of  lading  evidenced.  But,  in  referring  to  the  Almy  case,  the  court  was 
careful  to  say  (p.  294): 


576  TREATY-MAKING  POWEK  OF  THE  U.  S. 

"  'It  is  true  that  tlieieafter  ia  Woodruff  vs.  Parham,  (8  Wall.  123,)  it 
was  held  that  the  words  '  imports'  and  'exports,'  as  used  iu  the  Con- 
stitution, were  used  to  define  the  shipment  of  articles  between  this  and 
a  foreign  country  and  not  tliat  between  the  States,  and  while  therefore 
that  case  is  no  longer  an  authority  as  to  what  is  or  what  is  not  an  ex- 
port, the  proposition  that  a  siamp  duty  on  a  bill  of  lading  is  iu  effect  a 
duty  on  the  article  transported  remains  unaffected.' 

"A  consideration  of  the  opinions  iu  Woodruff  vs.  Parham  and  Brown 
vs.  Uouston,  so  recently  in  effect  approved  by  this  court  in  the  case  of 
Fairbank  vs.  United  States,  will  make  it  clear  that  an  adherence  to  the 
interpretation  of  the  words  export  and  import  which  was  expounded  in 
those  cases  is  essential  to  the  preservation  of  the  necessary  powers  of 
taxation  of  the  several  States,  as  well  as  of  those  of  the  government  of 
the  United  States.  And,  by  implication,  in  a  number  of  cases  decided 
by  this  court  since  the  decision  in  Woodruff  vs.  Parham,  the  doctrine  of 
export  and  import  there  defined  has  been,  if  not  expressly,  at  least 
tacitly,  approved  in  many  ways.  Indeed,  it  may  be  safely  assumed 
that  many  State  statutes  levying  taxes  aud  much  legislation  of  Congress 
has  been  enacted  upon  the  express  or  implied  recognition  of  the  settled 
construction  of  the  Constitution  hitherto  affixed  to  the  import  and  ex- 
port clauses  by  this  court  in  the  cases  referred  to.  And  this  will  be 
made  obvious  when  it  is  considered  that  if  the  words  export  and  im- 
port as  used  in  the  Constitution  be  applied  to  the  movement  of  goods 
between  the  States,  then  it  amounts  to  not  only  an  express  prohibition 
on  the  States  to  impose  any  direct  but  also  any  indirect  burden,  and, 
therefore,  under  the  doctrine  of  Broionvs.  Maryland,  any  state  tax  law 
which  would  indirectly  burden  the  coming  of  goods  from  one  State  to 
the  other  would  be  wholly  void.  So  also,  as  to  the  government  of  the 
United  States,  if  tlie  provision  as  to  the  laying  and  collection  of  im- 
posts be  not  construed  as  a  'distinct'  provision  relating  to  foreign 
commerce  and  co-related  with  the  clause  as  to  exports,  it  would  follow, 
as  was  clearly  pointed  out  inWuodruffv?,.  Parham,  that  the  Constitution 
had  granted  on  the  one  hand  a  power  and  immediately  denied  it.  Be- 
sides, it  would  follow  that  all  the  general  powers  of  taxation  conferred 
upon  Congress  would  be  limited  by  the  export  clause,  and  thus  any 
domestic  tax,  although  fulfilling  the  requirements  of  uniformity  and 
not  violating  the  prohibition  against  preferences  which  indirectly 
burdened  the  ultimate  export,  would  be  void,  a  doctrine  which  would 
manifestly  cause  to  be  invalid  methods  of  taxation  exercised  by  Con- 
gress from  the  beginning  without  question. 

"  It  being  then  beyond  doubt  that  this  court  has,  in  a  line  of  well-con- 
sidered cases,  determined  that  tlie  words  export  and  import  when  em- 
ployed in  the  Constitution  relate  to  the  bringing  in  of  goods  from  a 
country  foreign  to  the  United  States  and  to  the  carrying  out  of  goods 
from  the  United  States  to  such  a  country,  the  only  question  remaining 
is.  Is  Porto  Rico  a  country  foreign  to  the  United  States?  In  answering 
this  question  it  is  manifest,  from  the  entire  reasoning  of  the  court,  in 
the  cases  in  which  it  was  decided  that  the  terms  export  and  import  re- 
late to  a  foreign  country  alone,  that  the  words  foreign  country,  as  used 


INSULAR  CASES  APPENDIX.  577 

Supplement. 
in  those  opinions,  signified  a  country  outside  the  sovereignty  of  the 
United  States  and  beyond  its  legislative  authority,  and  that  such  mean- 
ing of  those  words  was  absolutely  essential  to  the  process  of  reasoning 
by  which  the  conclusion  in  the  cases  referrod  to  was  reached. 

"  Is  Porto  Rico  a  country  foreign  to  the  United  States  in  the  sense  that 
it  is  not  within  the  sovereignty  and  not  subject  to  the  legislative  author- 
ity of  the  United  States  ?  is  then  the  issue.  In  De  Lima  vs.  Bidwell  and 
Doolfij  vs.  UnlUid  States,  supra,  it  was  held  that  instantly  upon  the  rati- 
fication of  the  treaty  with  Spain,  Poito  Rico  ceased  to  be  a  foreign  coun- 
try within  tlie  meaning  of  the  tariff  laws  of  the  United  States.  In  the 
case  of  The  Diamond  Rings,  it  has  just  been  held  that  the  Philippine 
Islands  immediately  upon  the  ratification  of  the  treaty  ceased  to  be 
foreign  country  within  the  meaning  of  the  tariff  laws;  and  of  course, 
as  these  islands  were  acquired  by  the  same  treaty  by  whicli  Porto  Rico 
was  acquired,  this  ruling  is  predicated  on  the  decisions  in  De  Lima  and 
Douley,  above  referred  to.  It  is  true  that  both  in  the  De  Lima  and  the 
Dooley  cases,  as  well  as  in  the  case  of  The  Diamond  Rings,  just  decided, 
dissents  were  announced.  None  of  the  dissents  rested,  however,  upon 
the  theory  that  Porto  Rico  or  the  Philippine  Islands  had  not  come  under 
the  sovereignty  and  become  subject  to  the  legislative  authority  of  the 
United  States,  but  were  based  on  the  ground  that  legislation  by  Con- 
gress was  necessary  to  bring  the  territory  within  the  line  of  the  tariff 
laws  in  force  at  the  time  of  the  acquisition;  and  especially  was  this  the 
case  where  the  new  territory  had  not,  as  the  result  of  the  acquisition, 
been  incorporated  into  the  United  States  as  an  integral  part  thereof, 
though  coming  under  its  sovereignty  and  subject,  as  a  possession,  to 
the  legislative  power  of  Congress. 

"  In  DoiunesYS.  Bidwell,  supra,  the  question  was  whether  a  tax  imposed 
by  Congress  on  goods  coming  into  the  United  States  from  Porto  Rico 
was  repugnant  to  that  clause  of  the  Constitution  requiring  uniformity 
'througliout  the  United  States'  of  all  'duties,  imposts  and  excises.' 
The  contention  on  the  one  hand  was,  that  as  Porto  Rico  had  by  the 
treaty  with  Spain  been  acquii-ed  by  the  United  States,  Congress  could 
not  impose  a  burden  on  goods  coming  from  Porto  Rico,  in  disregard  of 
the  requirement  of  uniformity  'throughout  the  United  States.'  On 
the  other  hand,  it  was  contended  that  although  Porto  Rico  had  become 
territory  of  the  United  States  and  was  subject  to  the  legislative  author- 
ity of  Congress,  it  had  not  been  so  made  a  part  of  the  United  States  as 
to  cause  Congress  to  be  subject,  in  legislating  with  regard  to  that  island, 
to  the  uniformity  provision  of  the  Constitution.  The  court  maintained 
the  latter  view.  Whilst  it  is  true  the  members  of  the  court  who  agreed 
in  this  conclusion  did  so  for  different  reasons,  nevertlieloss,  in  all  the 
opinions  delivered  by  the  justices  who  formed  the  majority  of  the  court, 
it  was  declared  that  Porto  Rico  had  come  imder  the  sovereignty  and 
was  subject  to  the  legislative  authority  of  the  United  States.  Indeed, 
this  was  controverted  by  no  one,  since  the  members  of  the  court  who 
dissented  did  so  because  they  deemed  that  Porto  Rico  had  so  entirely 
ceased  to  be  foreign  country  and  had  so  completely  been  made  a  part 
of  the  United  States,  that  Congress  could  not,  in  legislating  for  that 

37 


578  TREATY-MAKINCr  POWER  OF  THE  U.  S. 

island,  disregard  the  provision  of    uniformity  tliroughout  the  United 
States. 

"  It  having  been  thus  affirmatively  repeatedly  determined  that  the  ex- 
port and  import  clauses  of  the  Constitution  refer  only  to  commerce 
with  foreign  countries,  that  is,  to  a  country  or  countries  without  the 
sovereignty  and  entirely  beyond  the  legislative  authority  of  the  United 
States,  and  it  having  been  conclusively  settled  that  Porto  Rico  is  not 
such  a  country,  it  seems  to  me  the  claim  here  made  that  the  tax  im- 
posed by  Congress  in  Porto  Rico  is  an  export  or  an  impoit  -within  the 
meaning  of  the  Constitution,  is  untenable.  But,  it  is  said,  if  Porto  Rico 
is  not  foreign,  and,  therefore,  the  tax  laid  on  goods  in  that  island  on 
their  arrival  from  tlie  United  States  is  not  within  the  purview  of  the 
import  and  the  inhibition  of  the  export  clauses  of  the  Constitution, 
then  Porto  Rico  is  domestic,  and  the  tax  is  void  because  repugnant  to 
the  first  clause  of  section  8  of  article  I  of  the  Constitution  conferring 
upon  Congress  '  the  power  to  lay  and  collect  taxes,  duties,  imposts  and 
excises,  .  .  .  but  all  duties,  imposts  and  excises  shall  be  uniform 
throughout  the  United  States.'  This  contention,  however,  is  but  a  re- 
statement of  the  proposition  which  the  court  held  to  be  unsound  in 
Downes  vs.  Bldwell,  for,  in  that  case,  it  was  expressly  decided  that  a  pro- 
vision of  the  statute  now  in  question  which  imposes  a  tax  on  goods 
coming  to  the  United  States  from  Porto  Rico  was  valid  because  that 
island  occupied  such  a  relation  to  the  United  States  as  empowered  Con- 
gress to  exact  such  a  tax  since  the  requirement  of  uniformity  through- 
out the  United  States  was  inapplicable.  I  do  not  propose  to  recapitu- 
late the  grounds  of  the  conclusion  so  elaborately  expressed  by  the  opin- 
ions of  the  majority  of  the  court  in  that  case,  since  it  suffices  to  say, 
for  the  purposes  of  the  uniformity  clause,  that  decision  is  controlling 
in  this  case.  If  the  contention  be  that  because  the  impost  clause  of  the 
Constitution  refers  only  to  foreign  commerce,  therefore  there  was  no 
power  in  Congress  to  impose  the  tax  in  question,  or  that  such  power  is 
impliedly  denied,  the  contention  is  unfounded,  and  really  but  amounts 
to  an  indirect  attack  upon  the  doctrines  announced  inWdodniff  vs.  Par- 
ham,  Brown  vs.  Houston  and  Fairbank  vs.  United  States,  As  held  in 
Woodruff  vs.  Parham,  the  impost  clause  and  the  export  clause  are  co- 
related  and  refer  to  a  distinct  subject,  that  is,  foreign  commerce.  By 
what  process  of  reasoning  it  can  be  said  that  because  a  special  enumera- 
tion on  a  particular  subject  of  taxation  and  a  particular  limitation  as  to 
that  subject  is  expressed  in  the  Constitution,  therefore  other  and  general 
powers  of  taxation  not  relating  to  the  subject  in  question  are  taken 
away,  is  not  by  me  perceived.  Certainly  the  argument  cannot  be  that 
because  a  power  has  been  conferred  on  Congress  by  the  Constitution 
to  levy  a  tax  on  foreign  commerce,  therefore  the  Constitution  has 
taken  away  from  Congress  power  to  tax  even  indirectly  domestic  com- 
merce. Because  the  grant  of  power  as  to  imposts  contained  in  the  first 
clause  of  section  8  of  article  I  of  the  Constitution  relates  to  foreign 
commerce  there  arises  no  limitation  on  the  general  authority  to  tax  as  to 
all  other  subjects,  which  flow  from  the  other  provisions  of  the  same 
clause.     Referring  to  such  power — the  authority  to  levy  and  collect 


INSULAR  CASES  APPENDIX.  579 

Supplement. 

taxes,  duties,  imposts  and  excises — the  court,  in  the  License  Tax  Cases, 
(1866)  5  Wall.  462,  471,  said: 

"'The  power  of  Congress  to  tax  is  a  very  extensive  power.  It  is 
given  ia  the  Constitution,  with  only  one  exception  and  only  two  quali- 
fications. Congress  cannot  tax  exports,  and  it  must  impose  direct  taxes 
by  the  rule  of  apportionment,  and  indirect  taxes  by  the  rule  of  uni- 
formity. Thus  limited,  and  thus  only,  it  reaches  every  subject,  and 
may  be  exercised  at  discretion.' 

"  Of  course,  the  Constitution  contemplates  freedom  of  commerce  be- 
tween the  States,  but  it  also  confers  upon  Congress  the  powers  of  taxa- 
tion to  which  I  have  referred,  and  safeguarded  the  freedom  of  com- 
merce and  equality  of  taxation  between  the  States  by  conferring  upon 
Congress  the  power  to  regulate  such  commerce,  by  providing  for  the 
apportionment  of  direct  taxes,  by  exacting  uniformity  throughout  the 
United  States  in  the  laying  of  duties,  imposts  and  excises,  and  by  pro- 
hibiting preferences  between  ports  of  different  States.  Indeed,  when 
the  argument  which  I  am  considering  is  properly  analyzed,  it  amounts 
to  a  denial,  as  I  have  said,  of  the  substantial  powers  of  Congress  with 
regard  to  domestic  taxation,  and,  as  I  understand  it,  overthrows  the 
settled  interpretation  of  the  Constitution,  long  since  announced  and 
consistently  adhered  to." 

Mr.  Chief  Justice  Fuller,  with  whom  concurred  Mr.  Justice  Harlan, 
Mr.  Justice  Brewer  and  Mr.  Justice  Peckham,  delivered  a  dissenting 
opinion  as  follows: 

"  This  is  an  action  brought  to  recover  back  duties  levied  and  collected 
under  the  Porto  Kican  act  of  April  12,  1900,  (31  Stat.  77,)  at  San  Juan, 
on  articles  shipped  to  that  port  by  citizens  of  New  York  from  the  State 
of  New  York.  Plaintiffs  were  engaged  in  the  business  of  commission 
merchants,  having  their  main  office  in  the  city  of  New  York  and  a 
branch  office  at  San  Juan. 

"  The  second  section  of  the  act  provides  that,  from  the  time  of  its  pas- 
sage, 'the  same  tariffs,  customs,  and  duties  shall  be  levied,  collected, 
and  paid  upon  all  articles  imported  into  Porto  Rico  from  ports  other 
than  those  of  the  United  States  which  are  required  by  law  to  be  col- 
lected upon  articles  imported  into  the  United  States  from  foieign  coun- 
tries,' with  some  exceptions  not  material  here. 

"  The  third  section,  by  which  these  duties  are  imposed,  reads:  '  That 
on  and  after  the  passage  of  this  act  all  merchandise  coming  into  the 
United  States  from  Porto  Rico  and  coming  into  Porto  Rico  from  the 
United  States  shall  be  entered  at  the  several  ports  of  entry  upon  pay- 
ment of  fifteen  per  centum  of  the  duties  which  are  required  to  be  levied, 
collected,  and  paid  upon  like  articles  of  merchandise  imported  from 
foreign  countries;  and  in  addition  thereto  upon  articles  of  merchandise 
of  Porto  Rican  manufacture  coming  into  the  United  States  and  with- 
drawn for  consumption  or  sale  upon  payment  of  a  tax  equal  to  the  in- 
ternal revenue  tax  imposed  in  the  United  States  upon  the  like  articles 
of  merchandise  of  domestic  manufacture; '  and  it  was  further  provided 
that  articles  of  merchandise  manufactured  in  the  United  States  coming 


680  TREATY-MAKING  POWER  OF  THE  U.  S. 

into  Porto  Rico  should,  after  entry,  be  subject  to  whatever  internal 
revenue  taxes  miglit  be  iu  force  on  the  island.  And  also  that  whenever 
the  legislative  assembly  of  Porto  Klco  should  have  enacted  and  put  into 
operation  a  system  of  local  taxation,  and  proclamation  thereof  had  been 
made,  'all  tariff  duties  on  merchandise  aud  articles  going  into  Porto 
Kico  from  the  United  States  or  coming  into  the  United  States  from 
Porto  Kico  sliall  cease.' 

"  Assuming  tliat  '  the  United  States  '  as  referred  to  is  the  United  States 
as  constituted  at  the  date  of  the  proclamation  of  the  treaty,  the  act, 
explicitly  recognizing  the  distinction  between  tariff  duties  and  internal 
taxes,  is  in  respect  of  such  duties  an  act  to  raise  revenue  by  taxing  the 
commerce  of  the  people  of  every  State  and  territory. 

"  Tlie  fact  that  the  net  proceeds  of  the  duties  are  appropriated  by  the 
act  for  use  in  Porto  Rico  does  not  affect  their  character  any  more  than 
if  so  appropriated  by  auother  aud  separate  act.  The  taxation  reaches 
the  people  of  the  States  directly,  aud  is  national  and  not  local,  even 
though  the  revenue  derived  therefrom  is  devoted  to  local  purposes. 

"Customs  duties  are  duties  imposed  on  imports  or  exports,  and,  ac- 
cording to  the  terms  of  this  act,  these  are  customs  duties,  not  levied 
according  to  the  rule  of  uniformity,  and  laid  on  exports  as  well  as  im- 
ports. 

"  By  the  first  clause  of  section  8  of  Article  I  of  the  Constitution,  Con- 
gress is  empowered  to  lay  aud  collect  duties,  imposts  and  excises,  subject 
to  the  rule  of  uniformity,  but  this  court  has  held  that  ciistoms  duties  are 
only  leviable  on  foreign  commerce,  Woodruff  vs.  Parham,  8  Wall.  123,  and 
that  the  uniformity  required  is  geographical  merely,  Knoivlton  vs.  Moore, 
178  U.  S.  41.  By  the  third  clause  of  the  same  section.  Congress  is  em- 
powered '  to  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes.'  The  power  to  tax  and  the 
power  to  regulate  commerce  are  distinct  powers,  yet  the  power  of  tax- 
ation may  be  so  exercised  as  to  operate  in  regulation  of  commerce. 

"  Clauses  5  and  6  of  section  9  provide: 

"  '  No  tax  or  duty  sliall  be  laid  on  articles  exported  from  any  State. 

"  'No  preference  shall  be  given  by  any  regulation  of  commerce  or  rev- 
enue to  the  ports  of  one  State  over  those  of  another;  nor  shall  vessels 
bound  to  or  from  one  State  be  obliged  to  enter,  clear  or  pay  duties  in 
another.' 

"These  provisions  were  intended  to  prevent  the  application  of  the 
power  to  lay  taxes  or  duties,  or  the  power  to  regulate  commerce,  so  as 
to  discriminate  between  one  part  of  the  country  and  another.  The  reg- 
ulation of  commerce  by  a  majority  vote  and  the  exemption  of  exports 
from  duties  or  taxes  were  parts  of  one  of  the  great  compromises  of  the 
Constitution. 

"  If,  after  the  cession,  Porto  Rico  remained  a  foreign  country,  the  pro- 
hibition of  clause  5  would  be  fatal  to  these  duties;  while  if  Porto  Rico 
became  domestic,  then,  as  they  are  customs  duties,  they  could  not  be 
sustained,  according  to  Woodruff  vs.  Parham,  under  the  first  clause  of 
section  8;  and  were  also  prohibited  by  clause  5  of  section  9,  whether 


INSULAR   CASES    APPENDIX.  581 

Supplement. 

customs  duties  or  not,  if  the  application  of  that  clause  is  not  limited  to 
foreign  commerce. 

"  Tlie  prohibition,  that '  no-tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State,'  negatives  the  existence  of  any  power  in  Congress  to  lay 
taxes  or  duties  in  any  form  on  articles  exported  from  a  State,  irrespective 
of  their  destination,  and,  this  being  so,  the  act  in  imposing  the  duties  in 
question  is  invalid,  whether  Porto  Rico,  after  its  passage,  was  a  foreign 
or  reputed  foreign  territory,  a  domestic  territory,  or  a  territory  subject 
to  be  dealt  with  at  the  will  of  Congress  regardless  of  constitutional 
limitations. 

"  Confessedly  the  prohibition  applies  to  foreign  commerce,  and  the 
question  is  whether  it  is  confined  to  that.  In  other  words,  whether  lan- 
guage which  embraces  all  articles  exported  can  be  properly  restricted  to 
particular  exports.  On  what  ground  can  the  insertion  in  this  comprehen- 
sive denial  of  power  of  the  words  'to  foreign  countries,'  thereby  de- 
priving it  of  effect  on  commerce  other  than  foreign,  be  justified? 

"If  the  words  'exported  from  auy  State  '  apply  only  to  articles  ex- 
ported from  a  State  to  foreign  country,  it  would  seem  to  follow  that  then 
broad  power  granted  to  Congress  '  to  lay  and  collect  taxes,'  for  the 
purposes  specified  in  the  Constitution,  may  be  exerted  in  the  way  of 
taxation  on  articles  exported  from  one  State  to  another.  The  right  to 
carry  legitimate  articles  of  commerce  from  one  State  to  another  State 
without  interference  by  National  or  State  authority  was,  it  has  always 
been  supposed,  firmly  established  and  secured  by  the  Constitution.  But 
that  right  may  be  destroyed  or  greatly  impaired  if  it  be  true  that  arti- 
cles may  be  taxed  by  Congress  by  reason  of  their  being  carried  from  one 
State  to  another. 

"Undoubtedly  the  clause  confines  the  power  to  lay  customs  duties  or 
imposts  to  imports  only.  This  was  so  stated  by  Mr.  Hamilton  in  the 
thirty-second  number  of  The  Federalist:  "The  first  clause  of  the  same 
section  [§  8]  empowers  Congress  'fo  lay  and  collect  taxes,  duties,  imposts, 
and  excises; '  and  the  second  clause  of  the  tenth  section  of  the  same 
article  declares  that  'no  State  shall,  without  the  consent  of  Congress,  lay 
ang  imposts  or  duties  on  imports  or  exports,  except  for  the  purpose  of 
executing  its  inspection  laws.'  Hence  would  result  an  exclusive  power 
in  the  Union  to  lay  duties  on  imports  and  exports,  with  the  particular 
exception  mentioned.  But  this  power  is  abridged  by  another  clause, 
which  declares  that  no  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State;  in  consequence  of  which  qualification  it  now  only  ex- 
tends to  the  duties  on  imports.'' 

"  Nevertheless  because  the  clause  secured  that  object,  it  is  not  to  be 
assumed  that  it  was  not  also  intended  to  secure  unrestrained  intercourse 
between  the  different  parts  of  a  common  country. 

"  As  was  said  in  Gibbons  vs.  Ogden,  the  right  of  intercourse  between 
State  and  State  was  derived  '  from  those  laws  whose  authority  is 
acknowledged  by  civilized  man  throughout  the  world.  The  Constitu- 
tion found  it  an  existing  right,  and  gave  to  Congress  the  power  to  regu- 
late it.'    9  Wheat.    211.    From  this  grant,  however,  the  power  to  regulate 


582  TREATY-IMAKING  POWER  OF  THE  U.  S. 

by  the  levy  of  any  tax  or  duty  on  articles  exported  from  any  State  was 
expressly  withlield. 

'•In  ]Voodriiffys.  Parhani,  8  Wall.  132,  Mr.  Justice  Miller,  in  support  of 
the  couchisiou  that  clause  1  of  section  8  was  confined  as  to  customs  du- 
ties to  foreifjn  commerce,  said:  'Is  the  word  impost,  here  used,  in- 
tended to  confer  upon  Congress  a  distinct  power  to  levy  a  tax  upon  all 
goods  or  merchandise  carried  from  one  State  into  another  ?  Or  is  the 
power  limited  to  duties  on  foreign  imports  ?  If  the  former  be  intended, 
then  the  power  conferred  is  curiously  rendered  nugatory  by  the  subse- 
quent clause  of  the  ninth  section,  which  declares  that  no  tax  shall  be 
laid  on  articles  exported  from  any  State,  for  no  article  can  be  imported 
from  one  State  into  another  which  is  not,  at  the  same  time,  exported 
from  the  former.' 

"  In  tliat  case,  clause  2  of  section  10  was  under  consideration :  '  No  State 
shall,  without  the  consent  of  Congress,  lay  any  imposts  or  duties  on  im- 
ports or  exports,  except  what  may  be  absolutely  necessary  for  executing 
its  inspection  laws;  and  the  net  produce  of  all  duties  and  imposts,  laid 
by  any  State  on  imports  or  exports,  shall  be  for  the  use  of  the  Treasury 
of  the  United  States;  and  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  the  Congress.' 

"  It  was  held  that  this  referred  to  foreign  commerce  only,  and  '  that  no 
intention  existed  to  prohibit,  by  this  clause,  the  right  of  one  State  to 
tax  articles  brought  into  it  from  another.'  This  was  reaffirmed  in  Brown 
vs.  Houston,  114  U.  S.  G22,  630,  and  Mr.  Justice  Bradley  said:  '  But  in 
holding,  with  the  decision  in  Woodruff  vs.  Parham,  that  goods  carried 
from  one  State  to  another  are  not  imports  or  exports  within  the  mean- 
ing of  the  clause  which  prohibits  a  State  from  laying  any  impost  or  duty 
on  imports  or  exports,  we  do  not  mean  to  be  understood  as  holding  that 
a  State  may  levy  import  or  export  duties  on  goods  imported  from  or 
exported  to  another  State.  We  only  mean  to  say  that  the  clause  in 
question  does  not  prohibit  it.  Whether  the  laying  of  such  duties  by  a 
State  would  not  violate  some  other  provision  of  the  Coqstitution,  that, 
for  example,  which  gives  to  Congress  the  power  to  regulate  commerce 
with  foreign  nations,  among  the  several  States,  and  with  the  Indian 
tribes,  is  a  different  question.' 

"  That  question  has  been  repeatedly  answered  by  this  court  to  the  effect 
'that  no  State  has  the  right  to  lay  a  tax  on  interstate  commerce  in  any 
form,  whether  by  way  of  duties  laid  on  the  transportation  of  the  sub- 
jects of  that  commerce,  or  on  the  receipts  derived  from  that  transporta- 
tion, or  on  the  occupation  or  business  of  carrying  it  on,  for  the  reason  that 
such  taxation  is  a  burden  on  that  commerce,  and  amounts  to  a  regula- 
tion of  it,  which  belongs  solely  to  Congress.'  Lyny  vs.  Michigan,  135 
U.  S.  166.  But  if  that  power  of  regulation  is  absolutely  unrestricted  as 
respects  interstate  commerce,  then  the  very  unity  the  Constitution  was 
framed  to  secure  can  be  set  at  naught  by  a  legislative  body  created  by 
that  instrument. 

"Such  a  conclusion  is  wholly  inadmissible.  The  power  to  regulate 
interstate  commerce  was  granted  in  order  that  trade  between  the  States 


INSULAR  CASES  APPENDIX.  583 

Supplement. 
might  be  left  free  from  discriminating  legislation  and  not  to  impart  the 
power  to  create  antagonistic  commercial  relations  between  them. 

"  The  prohibition  of  preference  of  ports  was  coupled  with  the  prohibi- 
tion of  taxation  on  articles  exported.  The  citizens  of  each  State  were 
declared  '  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States,'  and  that  included  the  right  of  ingress  and  egress,  and 
the  enjoyment  of  the  privileges  of  trade  and  commerce.  (Slaughter- 
house Cases,  16  Wall.  36.) 

"And  so  the  court,  in  Woodruff  \s.  Parham,  as  the  quotation  from  its 
opinion  by  Mr.  Justice  Miller  demonstrates,  did  not  put  upon  the  abso- 
lute and  general  prohibition  of  power  to  lay  any  tax  or  duty  on  articles 
exported  from  any  State  that  narrow  construction  which  would  limit  it 
to  exports  to  a  foreign  country,  and  would  concede  the  power  to  Con- 
gress to  impose  duties  on  exports  from  one  State  to  another  in  regula- 
tion of  interstate  commerce. 

"  The  power  to  lay  duties  in  regulation  of  commerce  with  foreign 
nations  is  relied  on  as  the  source  of  power  to  pass  laws  for  the  protec- 
tion and  encouragement  of  domestic  industries,  and  except  for  this 
clause  the  same  effect  would  be  attributed  to  the  power  to  regulate 
commerce  among  the  States.  Tliis,  however,  the  clause,  literally  read, 
prevents,  and  to  limit  its  application  to  foreign  commerce,  as  the  power 
to  lay  customs  duties  under  the  first  clause  of  section  8  has  been 
limited,  would  defeat  the  manifest  purpose  of  the  constitution  by 
enabling  discriminating  taxes  and  duties  to  be  laid  against  one  section 
of  the  country  as  distinguished  from  another. 

"And  if  the  prohibition  be  not  confined  to  foreign  commerce  then  it 
applies  to  all  commerce,  not  wholly  internal  to  the  respective  States, 
and  the  destination  of  articles  exported  from  a  State  cannot  affect,  or 
be  laid  hold  of  to  affect,  the  result. 

"In  short,  clause  5  operates,  and  was  intended  to  operate,  to  except 
the  power  to  lay  any  tax  or  duty  on  articles  exported  from  the  general 
power  to  regulate  commerce  whether  interstate  or  foreign.  And  this 
is  equally  true  in  respect  to  commerce  with  the  territories,  for  the 
power  to  regulate  commerce  includes  the  power  to  regulate  it  not  only 
as  between  foreign  countries  and  the  territories,  but  also  by  necessary 
implication  as  between  the  States  and  territories.  Stoutenburgh  v. 
Hennick,  129  U.  S.  141. 

"  Nothing  is  better  settled  than  that  the  States  cannot  interfere  with 
interstate  commerce,  yet  it  is  easy  to  see  that  if  the  exclusive  delega- 
tion to  Congress  of  the  power  to  regulate  commerce  did  not  embrace 
commerce  between  the  States  and  territories,  the  interference  by  the 
States  with  such  commerce  might  be  justified. 

"Again,  if,  in  any  view,  these  duties  could  be  treated  as  other  than 
custom  duties,  the  result  would  be  the  same,  inasmuch  as  the  goods 
were  articles  exported  from  New  York,  and  there  was  a  total  lack  of 
power  to  lay  any  tax  or  duty  on  such  articles. 

"The  prohibition  on  Congress  is  explicit,  and  noticeably  different  from 
the  proliibition  on  the  Stiites.  The  State  is  forbidden  to  lay  'any 
imposts  or  duties;'  Congress   is  forbidden  to  lay  'any  tax  or  duty.' 


584  TREATY-MAKING  POWER  OF  THE  U.  S. 

The  State  is  forbidden  from  laying  imposts  or  duties  'on  imports  or 
exports'  that  is,  articles  coming  into  or  going  out  of  the  United  States. 
Congress  is  forbidden  to  tax  'articles  exported /ro/n  any  State.'' 

"The  plain  language  of  tlie  Constitution  should  not  be  made  'blank 
paper  by  construction,'  and  its  specific  mandate  ought  to  be  obeyed. 

"  As  said  in  Marburij  vs.  Madison,  '  It  is  declared  that  "  no  tax  or  duty 
shall  be  laid  ou  articles  exjjortcd  from  any  State."  Suppose  a  duty  on 
the  export  of  cotton,  of  tobacco,  or  of  flour;  and  a  suit  instituted  to  re- 
cover it.  Ought  judgment  to  be  rendered  in  such  a  case?  Ouglit  the 
judges  to  close  their  eyes  on  the  Constitution,  and  only  see  the  law?' 
1  Cranch,  178. 

"Nor  is  the  result  affected  by  the  fact  that  the  collection  of  these 
duties  was  at  Porto  Rioo. 

"In  lirownvs.  Mari/land,  12  Wheat.  437,  Chief  Justice  Marshall  said: 
'An  impost,  or  duty  ou  imports,  is  a  custom  or  a  tax  levied  on  articles 
brought  into  a  country,  and  is  most  usually  secured  before  the  importer 
is  allowed  to  exercise  his  rights  of  ownership  over  them,  because 
evasions  of  the  law  can  be  prevented  more  certainly  by  executing  it 
while  the  articles  aie  in  its  custody.  It  wtmld  not,  however,  be  less  a 
duty  or  imi^ost  on  the  articles,  if  it  were  to  be  levied  on  them  after  they 
were  landed.  The  policy  and  consequent  practice  of  levying  or  securing 
the  duty  before,  or  on  entering,  the  port,  does  not  limit  the  power 
to  that  state  of  things,  nor,  consequently,  the  prohibition,  unless  the 
true  meaning  of  the  clause  so  confines  it.  What,  then,  are  'imports?' 
The  lexicons  inform  us  they  are  'things  imported.'  If  we  appeal  to 
usage  for  the  meaning  of  the  word,  we  shall  receive  the  same  answer. 
They  are  the  articles  themselves  which  are  brought  into  the  country, 
'A  duty  on  imports,'  then,  is  not  merely  a  duty  on  the  act  of  importa- 
tion, but  is  a  duty  on  the  thing  impoited.  It  is  not,  taken  in  its 
literal  sense,  confined  to  a  duty  levied  while  the  article  is  entering  the 
country,  but  extends  to  a  duty  levied  after  it  has  entered  the  country.' 

"And  so  of  exports.  They  are  the  things  exported — the  articles 
themselves.  A  duty  on  exports  is  not  merely  a  duty  on  the  act  of 
exportation,  but  it  is  a  duty  on  the  article  exported,  and  the  article 
exported  remains  such  until  it  has  reached  its  final  destination.  The 
place  of  collection  is  purely  incidental,  and  immaterial  on  the  question 
of  i^ower. 

"  But  we  are  told  that  these  duties  were  laid,  not  on  articles  exported 
from  the  State  of  New  York,  but  on  articles  imported  into  Porto  Rico. 
The  language  used,  however,  precludes  this  contention,  and  there  is 
nothing  in  the  act  to  indicate  that  at  some  particular  point  on  a  voyage 
articles  exported  Avere  to  cease  to  be  such  and  to  become  imports,  and 
nothing  in  the  facts  in  this  case  to  indicate  a  sea  change  of  that  sort  as 
to  these  goods.  The  geographical  origin  of  the  shipment  controls,  and, 
as  heretofore  said,  it  is  not  material  whether  the  duties  were  collectible 
at  the  place  of  exportation  or  at  Porto  Rico.  They  were  imposed  on 
articles  exported  from  the  State  of  New  York,  and  before  the  articles 
had  reached  their  ultimate  destination  and  been  mingled  with  the 
common  mass  of  property  on  the  island. 


INSULAR  CASES  APPENDIX.  585 

Supplement. 

"Chief  Justice  Marshall  disposed  of  the  suggested  evasion  thus: 
'Suppose  revenue  cutters  were  to  be  stationed  off  the  coast  for  the  pur- 
pose of  levying  a  duty  on  all  merchandise  found  in  vessels  wliich  were 
leaving  the  United  States  for  foreign  countries;  would  it  be  received  as 
an  excuse  fortius  outrage  were  the  goveimnent  to  say  that  exportation 
meant  no  more  than  carrying  goods  out  of  the  country,  and  as  the  pro- 
hibition to  lay  a  tax  on  imports,  or  things  imported,  ceased  the  instant 
they  were  brought  into  the  country,  so  the  prohibition  to  tax  articles 
exported  ceased  when  they  were  carried  out  of  the  country.'  12  Wheat. 
445. 

"  There  is  no  difference  in  principle  between  the  case  supposed  and 
that  before  us.  The  course  of  transportation  is  arrested  until  the  exac- 
tion is  paid. 

"  The  proposition  that  because  the  proceeds  of  these  duties  were  to  be 
used  for  the  benefit  of  Porto  Rico  they  might  be  regarded  as  if  laid  by 
Porto  Rico  itself  with  the  consent  of  Congress,  and  were,  therefore,  law- 
ful,will  not  bear  examination.  No  moneycan  be  drawn  from  the  Treas- 
ury except  in  consequence  of  appropi'iations  made  by  law.  This  act 
does  not  appropriate  a  fixed  sum  for  the  benefit  of  Porto  Rico,  but  pro- 
vides that  the  money  collected,  and  collected  from  citizens  of  the  United 
States  in  every  port  of  the  United  States,  shall  be  placed  in  a  separate 
fund  or  subsequently  in  the  treasury  of  Porto  Rico,  to  be  expended  for 
the  government  and  benefit  thereof.  And  although  the  destination  of 
the  proceeds  in  this  way  were  lawful,  it  would  not  convert  duties  on 
articles  exported  from  the  States  into  local  taxes. 

"  States  may,  indeed,  under  the  Constitution,  lay  duties  on  foreign  im- 
ports and  exports,  for  the  use  of  the  Treasury  of  the  United  States,  with 
the  consent  of  Congress,  but  they  do  not  derive  the  power  from  the 
general  government.  The  power  pre-existed,  and  it  is  its  exercise  only 
that  is  subjected  to  the  discretion  of  Congress. 

"  Congress  may  lay  local  taxes  in  the  territories,  affecting  persons  and 
property  therein,  or  authorize  territorial  legislatures  to  do  so,  but  it 
cannot  lay  tariff  duties  on  articles  exported  from  one  State  to  another, 
or  from  any  State  to  the  territories,  or  from  any  State  to  foreign  coun- 
tries, or  grant  a  power  in  that  regard  which  it  does  not  possess.  But 
the  decision  now  made  recognizes  such  powers  in  Congress  as  will  en- 
able it,  under  the  guise  of  taxation,  to  exclude  the  products  of  Porto 
Rico  from  the  States  as  well  as  the  products  of  the  States  from  Porto 
Rico;  and  this  notwithstanding  it  was  held  in  De  Lima  vs.  Bidivell,  182 
U.  S.  1,  that  Porto  Rico  after  the  ratification  of  the  treaty  with  Spain 
ceased  to  be  foreign  and  became  domestic  territory. 

"  My  Brothers  Haelan,  Brewkr  and  Peckham  concur  in  this  dis- 
sent. 

"We  think  it  clear  on  this  record  that  plaintiffs  were  entitled  to  re- 
cover and  that  the  judgment  should  be  reversed." 


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